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Gerardo Rodarte v. Joseph Gutierrez – falsifying evidence – 5th, 8th & 14th Amendment

The Truth News — Thu, 20 Feb 2025 00:18:00 +0000

Gerardo Rodarte v. Joseph Gutierrez

Court of Appeals for the Ninth Circuit

Date Argued: October 21st, 2022

Duration: 26:25

Docket Number: 21-35973

Judges: NELSON, FORREST, SUNG

On 11/24/2021 Gerardo Rodarte filed a Civil Right - Other Civil Right lawsuit against Joseph Gutierrez. 
This case was filed in U.S. Courts Of Appeals, U.S. Court Of Appeals, Ninth Circuit. An appeal from the 
denial of qualified immunity to a County Sheriff's officer, Defendant Joseph Gutierrez, a deputy of the 
Skagit County Sheriff's Office was denied his request and will be held accountable for his abuse of 
power and falsifying evidence.

https://goodshepherdmedia.net/wp-content/uploads/2022/11/gerardo_rodarte_v._joseph_gutierrez_cl.mp3

2:20-cv-885-BJR

12-30-2021

GERARDO RODARTE, Plaintiff, v. SKAGIT COUNTY and JOSEPH GUTIERREZ, Defendants.

Barbara Jacobs Rothstein U.S. District Court Judge

ORDER ON DEFENDANT GUTIERREZ’S MOTION FOR RECONSIDERATION AND MOTION TO STAY TRIAL PROCEEDINGS

Barbara Jacobs Rothstein U.S. District Court Judge

This matter is before the Court on two motions: (1) Defendant Joseph Gutierrez’s motion for reconsideration of the Court’s order denying his motion for summary judgment on Plaintiff’s fabrication of evidence claims (Dkt. No. 44); and (2) Defendant Gutierrez’s motion to stay trial proceedings (Dkt. No. 48).

Having reviewed the materials submitted by the parties on the pending motions and the balance of the record in this case, the Court: (1) DENIES Defendant Gutierrez’s motion for reconsideration; and (2) GRANTS Defendant Gutierrez’s motion to stay trial proceedings. The reasons for the Court’s decisions are set forth below.

I. Background

On June 7, 2017, Skagit County law enforcement officers responded to an alleged domestic violence incident at Plaintiff Gerardo Rodarte’s home. Digna Guadalupe Rodarte-Hernandez, who is Plaintiff’s niece, alleged that Plaintiff had assaulted her, while Plaintiff 1 claimed that Digna had assaulted him. Defendant Joseph Gutierrez, a deputy of the Skagit County Sheriff’s Office, was one of the responding officers.

For ease of reference, the Court refers to Ms. Rodarte-Hernandez as “Digna” in this Order, and will refer to other persons (aside from the parties) by their first names as well. The Court intends no disrespect by its use of first names.

Defendant Gutierrez arrested Plaintiff, who was subsequently charged by the Skagit County Prosecuting Attorney’s Office with domestic violence assault and interfering with the reporting of a domestic violence crime. Plaintiff went to trial in January 2019 and was acquitted.

Plaintiff filed this complaint on June 8, 2020, bringing claims for civil rights violations under 42 U.S.C. §1983 (“Section 1983”) against Defendant Gutierrez and Skagit County. Plaintiff alleged that Defendants, acting in concert with one another: (1) denied or conspired to deny Plaintiff medical care in violation of his rights under the Eighth Amendment and Fourteenth Amendment; and (2) falsified or conspired to falsify evidence against Plaintiff in violation of his due process rights under the Fifth Amendment and Fourteenth Amendment.

On October 26, 2021, the Court issued an order on dispositive motions filed by Defendant Gutierrez and by Defendant Skagit County. The Court granted in part and denied in part Defendant Gutierrez’s motion for summary judgment. The Court granted summary judgment in favor of Defendant Gutierrez on Plaintiff’s claims of denial of medical treatment and conspiracy, but denied summary judgment on Plaintiff’s claims that Defendant Gutierrez falsified evidence against Plaintiff. The Court also granted Defendant Skagit County’s motion for judgment on the pleadings, finding that Plaintiff had failed to allege that any policies, procedures, or customs of the County caused a violation of Plaintiff’s civil rights.

On November 3, 2021, Defendant Gutierrez filed a motion for reconsideration of the Court’s denial of his motion for summary judgment on Plaintiff’s fabrication of evidence claims. 2

Consistent with the Local Civil Rules and the Court’s Standing Order for All Civil Cases, the Court requested a response from Plaintiff on the motion for reconsideration and authorized Defendant Gutierrez to file a reply in support of his motion for reconsideration.

On November 24, 2021, Defendant Gutierrez also filed: (1) a motion to stay trial proceedings; and (2) a notice of appeal to the Ninth Circuit of the Court’s denial of his motion for summary judgment on Plaintiff’s fabrication of evidence claims.

On December 1, 2021, the Ninth Circuit issued an order stating that Defendant Gutierrez’s notice of appeal was ineffective until this Court entered an order on his pending motion for reconsideration. The Ninth Circuit’s order provided that within seven days of this Court’s ruling on the motion for reconsideration, Defendant must notify the Ninth Circuit in writing of the ruling and advise the Ninth Circuit whether Defendant intends to prosecute his appeal.

II. Discussion

A. Motion for Reconsideration

1. Legal Standard

Under Local Civil Rule 7(h)(1), motions for reconsideration are disfavored and will ordinarily be denied “in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to [the Court’s] attention earlier with reasonable diligence.”

2. Defendant Gutierrez’s Motion to Strike and Request for Monetary Sanctions

As a preliminary matter, Defendant Gutierrez has moved to strike the entirety of Plaintiff’s response to the motion for reconsideration, including Plaintiff’s response brief as well 3 as the five declarations that Plaintiff offered in support of his response. Defendant also requests that the Court impose monetary sanctions for civil contempt against Plaintiff.

Defendant argues that Plaintiff’s response should be stricken for failure to address the qualified immunity issues raised in Defendant’s motion for reconsideration, noting that “Plaintiff fails to cite any case authority whatsoever discussing application of Qualified Immunity to the Fabrication of Evidence claim.” Dkt. No. 61 at 3. However, Defendant’s motion for reconsideration was not solely limited to legal arguments regarding qualified immunity. Defendant’s motion also offered new evidence (i.e., excerpts from three depositions, which are discussed in Section B.3 below) that Defendant asked the Court to consider. Plaintiff’s response includes arguments and evidence that are responsive to the new evidence offered by Defendant. As a result, the Court denies Defendant’s request to strike Plaintiff’s response in its entirety.

The Court further notes that its decision on Defendant’s motion for reconsideration does not rely on evidence or arguments that Plaintiff has offered in his response. As such, the motion to strike may be considered moot. Nonetheless, the Court notes in particular that it has not relied upon and will strike arguments and evidence that Plaintiff offers in his response regarding Defendant Gutierrez’s alleged propensity to fabricate evidence based on his conduct in other matters, including Section IV of Plaintiff’s response brief (Dkt. No. 54 at 6-7) and Exhibits B-D to the declaration of Plaintiff’s counsel (Dkt. No. 55, Exs. B-D).

Defendant also requests monetary sanctions against Plaintiff and Plaintiff’s counsel. Defendant argues that civil contempt sanctions are warranted because Plaintiff and his counsel willfully disobeyed the Court’s Minute Order (Dkt. No. 52) which requested that Plaintiff file a response to Defendant’s motion for reconsideration. The Court denies Defendant’s request for monetary sanctions. As noted above, Plaintiff’s response includes evidence and arguments that 4 are responsive to the new evidence that Defendant offered in support of his motion for reconsideration. To the extent that Plaintiff’s response offers evidence and arguments that are not responsive to Defendant’s motion, the Court finds that civil contempt sanctions are not warranted.

3. New Evidence Offered by Defendant Gutierrez

In support of his motion for reconsideration, Defendant Gutierrez has offered evidence that was not previously submitted to the Court. The new evidence consists of excerpts from three depositions that were conducted on September 22, 2021, after the parties had completed their briefing on Defendant Gutierrez’s motion for summary judgment but before the Court ruled on the motion.

The deposition transcripts include testimony from Irma Leticia Garcia Villegas and Marcial Rodarte Franco, a married couple. Irma testified that on June 7, 2017, she received a call from Digna’s mother in Mexico, who told her that Digna had been beaten up by Plaintiff and asked Irma to pick Digna up at Plaintiff’s home. Irma and Marcial picked up Digna at Plaintiff’s home that evening. Irma testified at her deposition that Digna had been beaten up and had red marks on her neck that looked like someone had tried to strangle her. Marcial offered similar testimony at his deposition, including that he observed marks on Digna’s neck. He also testified that he saw Plaintiff when the couple picked up Digna, and based on observations believed that Plaintiff had been drinking. 5

Irma and Marcial testified that they picked up Digna before Marcial had to report to work that evening; Irma recalled that Marcial had to be at work at 6:00 pm, while Marcial said his shift started at 7:00 pm. See Dkt. No. 45, Ex. 1 at 11, Ex. 2 at 17. The police report offered by Defendant Gutierrez indicates that Digna reported that the alleged assault happened at some point between 6:00 pm and 7:00 pm and that Defendant Gutierrez responded to a call regarding the alleged assault shortly before 9:00 pm on June 7, 2017. Dkt. No. 18, Ex. 2.

Defendant Gutierrez has also offered excerpts from the deposition of Yadira Rodarte Valdez. Yadira testified at her deposition that she received a call from Irma on June 7, 2017, who said that Digna had been beaten by Plaintiff. Yadira testified that she came to Irma’s house, and saw that Digna had bruising and red marks on her neck.

The Court finds that this new evidence does not entitle Defendant Gutierrez to summary judgment on Plaintiff’s fabrication of evidence claims. On summary judgment, the Court “must not weigh the evidence or determine the truth of the matters asserted but must only determine whether there is a genuine issue for trial.” Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9^th Cir. 1997). The new evidence supports Defendant Gutierrez’s argument that Digna had marks on her neck when she left Plaintiff’s house (either around 6:00 pm or 7:00 pm on June 7, 2017) after the alleged assault. However, as the Court noted in its prior Order, Plaintiff offered a declaration in response to Defendant Gutierrez’s summary judgment motion that stated: “When my niece left my house earlier that day, she did not have any marks on her neck.” Dkt. No. 37 at 2. As a result, the new evidence offered by Defendant Gutierrez conflicts with evidence previously offered by Plaintiff.

The Ninth Circuit has held that “if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9^th Cir. 1987). As a result, the Court must assume the truth of Plaintiff’s declaration, and cannot dismiss Plaintiff’s declaration to the extent it conflicts with the new evidence offered by Defendant Gutierrez. Otherwise, the Court would usurp the jury’s function of weighing the evidence and determining the credibility of witnesses. 6

Defendant Gutierrez also argues that Plaintiff’s declaration constitutes a mere “scintilla of evidence” and fails to offer specific facts to defeat summary judgment on the fabrication of evidence claims. However, viewing the evidence in the light most favorable to Plaintiff as the non-moving party, the Court finds that Plaintiff’s declaration (Dkt. No. 37) is sufficient to create a genuine issue of material fact on the question of whether Defendant Gutierrez assisted Digna in fabricating evidence against Plaintiff. To be sure, as the Court noted in its prior order, Plaintiff did not assert in his declaration that he witnessed Defendant Gutierrez create marks on Digna’s neck. Nonetheless, Plaintiff asserted that Digna did not have marks on her neck when she left his house, and that after his arrest he observed Defendant Gutierrez meet with his niece and “heard Mr. Gutierrez state to my niece that they needed to change their story because it did not fit with the evidence, and that they had to fix it so it looked real.” Dkt. No. 37 at 2. Taking Plaintiff’s declaration as true, as the Court must for the purposes of summary judgment, there remains a disputed question of fact on whether Defendant Gutierrez assisted Plaintiff’s niece in fabricating evidence against Plaintiff.

4. Qualified Immunity

Defendant Gutierrez also argues that the Court failed in its Order to analyze whether he is entitled under the facts of this case to qualified immunity on Plaintiff’s fabrication of evidence claims. However, the Court noted in its Order (albeit in the context of discussing Plaintiff’s denial of medical treatment claims) that “[i]n evaluating whether an officer is entitled to qualified immunity, courts consider (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the incident.” Dkt. No. 43 at 5 (citing Martinez v. City of Clovis, 943 F.3d 1260, 1270 (9th Cir. 2019)). The Court later noted, in the context of discussing Plaintiff’s fabrication of evidence 7 claims, that “[t]here is a clearly established right not to be subjected to criminal charges based on false evidence that was deliberately fabricated by the government.” Dkt. No. 43 at 11 (citing Caldwell v. City & County of San Francisco, 889 F.3d 1105, 1112 (9^th Cir. 2018)). The Court also concluded that “[t]here are genuine issues of material fact on the questions of whether Defendant Gutierrez fabricated evidence against Plaintiff and whether the alleged fabrication caused injury to Plaintiff.” Dkt. No. 43 at 14.

Nonetheless, to the extent the Court’s prior Order was not clear on this point, the Court clarifies that it finds that Defendant Gutierrez is not entitled to qualified immunity on Plaintiff’s fabrication of evidence claims. The Ninth Circuit has recognized since at least 2001 that “there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9^th Cir. 2001). Indeed, the Ninth Circuit noted in Devereaux that this “proposition is virtually self-evident.” Id. at 1075.

Furthermore, viewing the evidence in the light most favorable to Plaintiff, there are genuine issues of material fact on the questions of whether Defendant Gutierrez violated this clearly established constitutional right by causing Plaintiff to be subjected to criminal charges by allegedly: (1) falsifying statements from Plaintiff’s wife about the alleged assault; and (2) assisting Plaintiff’s niece in fabricating evidence to support her assault allegations. In his response to Defendant Gutierrez’s motion for summary judgment, Plaintiff offered direct 8 evidence in sworn declarations from himself and his wife to support these allegations, and no reasonable police officer could have believed that it was constitutionally acceptable to fabricate evidence in the manner asserted in these declarations.

Defendant Gutierrez’s reliance on Suzuki v. County of Contra Costa, 820 Fed.Appx. 577 (9^th Cir. 2020), is misplaced. Suzuki is an unpublished decision, and as a result is not precedential. In addition, the facts in Suzuki are not analogous to those presented here. Defendant Gutierrez also argues that the Court “impermissibly leaps to the conclusion without supporting evidence that the prosecutor read the police report and based the charging decision on the report.” Dkt. No. 44 at 9. However, on a motion for summary judgment it can reasonably be inferred that a prosecutor would review a police report before filing charges, and Defendant Gutierrez has not offered a declaration from the prosecuting attorney indicating that she did not review his police report before filing charges against Plaintiff.

As a result, the Court is not persuaded on reconsideration that Defendant Gutierrez is entitled to qualified immunity on Plaintiff’s fabrication of evidence claims. See, e.g., Bonivert v. City of Clarkston, 883 F.3d 865, 871-72 (9^th Cir. 2018) (“[G]overnment officials are not entitled to qualified immunity if (1) the facts ‘[t]aken in the light most favorable to the party asserting the injury . . . show [that] the [defendants’] conduct violated a constitutional right’ and (2) ‘the right was clearly established’ at the time of the alleged violation.”) (internal citations omitted).

5. Plaintiff’s Untimely Request for Reconsideration

Finally, the Court notes that Plaintiff’s response to Defendant’s motion for reconsideration also includes a request for the Court to reverse its dismissal of Plaintiff’s conspiracy claim. Dkt. No. 54 at 10. Plaintiff’s request is effectively a motion for reconsideration of the Court’s October 26, 2021 decision to grant Defendant Gutierrez’s motion for summary judgment on Plaintiff’s conspiracy claims. As Defendant correctly notes, Plaintiff had fourteen days from the date of the Court’s decision to seek reconsideration of this ruling pursuant to Local Civil Rule 7(h). However, Plaintiff did not make his request for reconsideration of the ruling until December 23, 2021. Therefore, the Court denies Plaintiff’s untimely request for the Court to reverse its dismissal of his conspiracy claims.

B. Motion to Stay Trial Proceedings

Defendant Gutierrez has also filed a motion to stay trial proceedings pending his interlocutory appeal of the Court’s denial of his motion for summary judgment on Plaintiff’s fabrication of evidence claims. Defendant Gutierrez seeks to appeal the Court’s denial of his 9 claim of qualified immunity on the fabrication of evidence claims. As noted above, Defendant Gutierrez filed a notice of appeal on November 24, 2021; however, the Ninth Circuit has indicated that the notice of appeal is ineffective while Defendant Gutierrez’s motion for reconsideration is pending in this Court.

Plaintiff opposes the motion to stay. Plaintiff argues that a party seeking a stay pending an interlocutory appeal must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of relief, that the balance of equities tips in his favor, and that a stay is in the public interest. Dkt. No. 51 at 5. However, the cases Plaintiff cites for this proposition are not applicable to determining whether proceedings in a trial court should be stayed pending an interlocutory appeal of the denial of a qualified immunity claim.

The Supreme Court has held that “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Ninth Circuit has noted that:

Where the district court has determined the parties’ evidence presents genuine issues of material fact, such determinations are not reviewable on interlocutory appeal. See Lee v. Gregory, 363 F.3d 931, 932 (9^th Cir. 2004). However, we may adjudicate “legal” interlocutory appeals; that is, we may properly review a denial of qualified immunity where a defendant argues . . . that the facts, even when considered in the light most favorable to the plaintiff, show no violation of a constitutional right, or no violation of a right that is clearly established in law.

Ames v. King County, 846 F.3d 340, 347 (9^th Cir. 2017).

Plaintiff argues that Defendant’s appeal is based on factual rather than legal disputes. However, Defendant indicates in his motion to stay that he “appeals the denial of Summary Judgment that his conduct did not violate a constitutional right, and that no violation of the right(s) asserted by the Plaintiff was clearly established at the time Plaintiff was arrested and 10 prosecuted for Domestic Violence.” Dkt. No. 48 at 3. As a result, it appears that Defendant intends to pursue legal questions in his appeal.

Under Ninth Circuit law, this Court is “automatically divested of jurisdiction to proceed with trial pending appeal” when a Section 1983 defendant appeals the denial of qualified immunity, unless the trial court certifies in writing that the defendant’s claim of qualified immunity is frivolous or has been waived. Chuman v. Wright, 960 F.2d 104, 105 (9^th Cir. 1992). Plaintiff has not argued that Defendant has waived his claim of qualified immunity, nor does the Court find on the record before it that Defendant’s appeal of the denial of qualified immunity would be frivolous.

Therefore, the Court grants Defendant Gutierrez’s motion to stay trial proceedings in this matter pending the resolution of his appeal to the Ninth Circuit of the denial of his claim of qualified immunity on Plaintiff’s fabrication of evidence claims. The trial date of February 7, 2022, and all remaining pre-trial deadlines are stricken.

III. Conclusion

For the foregoing reasons, the Court: (1) DENIES Defendant Gutierrez’s motion for reconsideration (Dkt. No. 44); and (2) GRANTS Defendant Gutierrez’s motion to stay trial proceedings (Dkt. No. 48). The Court ORDERS that this matter is STAYED pending the resolution of Defendant Gutierrez’s appeal to the Ninth Circuit of the denial of his claim of qualified immunity on Plaintiff’s fabrication of evidence claims. 11

cited https://casetext.com/case/rodarte-v-skagit-cnty-1

the case can be seen here https://unicourt.com/case/pc-ap1-gerardo-rodarte-v-joseph-gutierrez-et-al-135558#case-details

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

The Truth News — Sun, 16 Feb 2025 08:34:33 +0000

Here are all the rules on conduct of all practicing lawyers which include Judges, commissioners, and practicing lawyers

Rules of Professional Conduct

Chapter 8. Maintaining the Integrity of the Profession (Rules 8.1 – 8.5)

Misconduct by Judges & Prosecutor

Rule 8.1 False Statement Regarding Application for Admission to Practice Law

(a) An applicant for admission to practice law shall not, in connection with that person’s* own application for admission, make a statement of material fact that the lawyer knows*
to be false, or make such a statement with reckless disregard as to its truth or falsity.
(b) A lawyer shall not, in connection with another person’s* application for admission to practice law, make a statement of material fact that the lawyer knows* to be false.
(c) An applicant for admission to practice law, or a lawyer in connection with an application for admission, shall not fail to disclose a fact necessary to correct a statement known* by the applicant or the lawyer to have created a material misapprehension in the matter, except that this rule does not authorize disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6.
(d) As used in this rule, “admission to practice law” includes admission or readmission to membership in the State Bar; reinstatement to active membership in the State Bar; and any similar process relating to admission or certification to practice law in California or elsewhere.

Comment

A person* who makes a false statement in connection with that person’s* own application for admission to practice law may be subject to discipline under this rule after that person* has been admitted. (See, e.g., In re Gossage (2000) 23 Cal.4th 1080 [99 Cal.Rptr.2d 130].)
A lawyer’s duties with respect to a pro hac vice application or other application to a court for admission to practice law are governed by rule 3.3.
A lawyer representing an applicant for admission to practice law is governed by the rules applicable to the lawyer-client relationship, including Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6. A lawyer representing a lawyer who is the subject of a disciplinary proceeding is not governed by this rule but is subject to the requirements of rule 3.3. Rule 8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline A lawyer shall comply with the terms and conditions attached to any agreement in lieu of discipline, any public or private reproval, or to other discipline administered by the State Bar pursuant to Business and Professions Code sections 6077 and 6078 and California Rules of Court, rule 9.19.

Other provisions also require a lawyer to comply with agreements in lieu of discipline and conditions of discipline. (See, e.g., Bus. & Prof. Code, § 6068, subds. (k), (l).)

Rule 8.2 Judicial & Legal Officials

(Rule Approved by the Supreme Court, Effective November 1, 2018)

(a) A lawyer shall not make a statement of fact that the lawyer knows* to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer, or of a candidate for election or appointment to judicial office.
(b) A lawyer who is a candidate for judicial office in California shall comply with canon 5 of the California Code of Judicial Ethics. For purposes of this rule, “candidate for judicial office” means a lawyer seeking judicial office by election. The determination of when a lawyer is a candidate for judicial office by election is defined in the terminology section of the California Code of Judicial Ethics. A lawyer’s duty to comply with this rule shall end when the lawyer announces withdrawal of the lawyer’s candidacy or when the results of the election are final, whichever occurs first.
(c) A lawyer who seeks appointment to judicial office shall comply with canon 5B(1) of the California Code of Judicial Ethics. A lawyer becomes an applicant seeking judicial office by appointment at the time of first submission of an application or personal data questionnaire to the appointing authority. A lawyer’s duty to comply with this rule shall end when the lawyer advises the appointing authority of the withdrawal of the lawyer’s
application. To maintain the fair and independent administration of justice, lawyers should defend judges and courts unjustly criticized. Lawyers also are obligated to maintain the respect due to the courts of justice and judicial officers. (See Bus. & Prof. Code, § 6068, subd. (b).)

Rule 8.3 [Reserved]

Model Rule 8.3 – Reporting Professional Misconduct

a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law; or
(f) knowingly* assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law. For purposes of this rule, “judge” and “judicial officer” have the same meaning as in rule 3.5(c).

1. A violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.
2. Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
3. A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. (See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)
4. A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.
5. Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.
6. This rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.

Rule 8.4.1 Prohibited Discrimination, Harassment and Retaliation

(a) In representing a client, or in terminating or refusing to accept the representation of any
client, a lawyer shall not:
- (1) unlawfully harass or unlawfully discriminate against persons* on the basis of any
  protected characteristic; or
- (2) unlawfully retaliate against persons.*
  - (b) In relation to a law firm’s operations, a lawyer shall not:
    - (1) on the basis of any protected characteristic,
      - (i) unlawfully discriminate or knowingly* permit unlawful discrimination;
      - (ii) unlawfully harass or knowingly* permit the unlawful harassment of an employee, an applicant, an unpaid intern or volunteer, or a person* providing services pursuant to a contract; or
      - (iii) unlawfully refuse to hire or employ a person*, or refuse to select a person* for a training program leading to employment, or bar or discharge a person* from employment or from a training program leading to employment, or discriminate against a person* in compensation or in terms, conditions, or privileges of employment; or
    - (2) unlawfully retaliate against persons.*
  - (c) For purposes of this rule:
    - (1) “protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived;
    - (2) “knowingly permit” means to fail to advocate corrective action where the lawyer knows* of a discriminatory policy or practice that results in the unlawful discrimination or harassment prohibited by paragraph (b);
    - (3) “unlawfully” and “unlawful” shall be determined by reference to applicable state and federal statutes and decisions making unlawful discrimination or harassment in employment and in offering goods and services to the public; and
    - (4) “retaliate” means to take adverse action against a person* because that person* has
      - (i) opposed, or
      - (ii) pursued, participated in, or assisted any action alleging, any conduct prohibited by paragraphs (a)(1) or (b)(1) of this rule.
  - (d) A lawyer who is the subject of a State Bar investigation or State Bar Court proceeding alleging a violation of this rule shall promptly notify the State Bar of any criminal, civil, or administrative action premised, whether in whole or part, on the same conduct that is the subject of the State Bar investigation or State Bar Court proceeding. (e) Upon being issued a notice of a disciplinary charge under this rule, a lawyer shall:
    - (1) if the notice is of a disciplinary charge under paragraph (a) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing and the United States Department of Justice, Coordination and Review Section; or
    - (2) if the notice is of a disciplinary charge under paragraph (b) of this rule, provide a copy of the notice to the California Department of Fair Employment and Housing
      and the United States Equal Employment Opportunity Commission.
  - (f) This rule shall not preclude a lawyer from:
    - (1) representing a client alleged to have engaged in unlawful discrimination, harassment, or retaliation;
    - (2) declining or withdrawing from a representation as required or permitted by rule 1.16; or
      (3) providing advice and engaging in advocacy as otherwise required or permitted by these rules and the State Bar Act.
      - [1] Conduct that violates this rule undermines confidence in the legal profession and our legal system and is contrary to the fundamental principle that all people are created equal. A lawyer may not engage in such conduct through the acts of another. (See rule 8.4(a).) In relation to a law firm’s operations, this rule imposes on all law firm* lawyers the responsibility to advocate corrective action to address known* harassing or discriminatory conduct by the firm* or any of its other lawyers or nonlawyer personnel. Law firm* management and supervisorial lawyers retain their separate responsibility under rules 5.1 and 5.3. Neither this rule nor rule 5.1 or 5.3 imposes on the alleged victim of any conduct prohibited by this rule any responsibility to advocate corrective action.
      - [2] The conduct prohibited by paragraph (a) includes the conduct of a lawyer in a proceeding before a judicial officer. (See Cal. Code Jud. Ethics, canon 3B(6) [“A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation against parties, witnesses, counsel, or others.”].) A lawyer does not violate paragraph (a) by referring to any particular status or group when the reference is relevant to factual or legal issues or arguments in the representation. While both the parties and the court retain discretion to refer such conduct to the State Bar, a court’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (a).
      - [3] A lawyer does not violate this rule by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations. A lawyer also does not violate this rule by otherwise restricting who will be accepted as clients for advocacy-based reasons, as required or permitted by these rules or other law.
      - [4] This rule does not apply to conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.
      - [5] What constitutes a failure to advocate corrective action under paragraph (c)(2) will depend on the nature and seriousness of the discriminatory policy or practice, the extent to which the lawyer knows* of unlawful discrimination or harassment resulting from that policy or practice, and the nature of the lawyer’s relationship to the lawyer or law firm* implementing that policy or practice. For example, a law firm* non-management and non-supervisorial lawyer who becomes aware that the law firm* is engaging in a discriminatory hiring practice may advocate corrective action by bringing that discriminatory practice to the attention of a law firm* management lawyer who would have responsibility under rule 5.1 or 5.3 to take reasonable* remedial action upon becoming aware of a violation of this rule.
      - [6] Paragraph (d) ensures that the State Bar and the State Bar Court will be provided with information regarding related proceedings that may be relevant in determining whether a State Bar investigation or a State Bar Court proceeding relating to a violation of this rule should be abated.
      - [7] Paragraph (e) recognizes the public policy served by enforcement of laws and regulations prohibiting unlawful discrimination, by ensuring that the state and federal agencies with primary responsibility for coordinating the enforcement of those laws and regulations is provided with notice of any allegation of unlawful discrimination, harassment, or retaliation by a lawyer that the State Bar finds has sufficient merit to warrant issuance of a notice of a disciplinary charge.
      - [8] This rule permits the imposition of discipline for conduct that would not necessarily result in the award of a remedy in a civil or administrative proceeding if such proceeding were filed.
      - [9] A disciplinary investigation or proceeding for conduct coming within this rule may also be initiated and maintained if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard.

Rule 8.5 Disciplinary Authority; Choice of Law

(a) Disciplinary Authority. A lawyer admitted to practice in California is subject to the disciplinary authority of California, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in California is also subject to the disciplinary authority of California if the lawyer provides or offers to provide any legal services in California. A lawyer may be subject to the disciplinary authority of both California and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of California, the rules of professional conduct to be applied shall be as follows:
- (1) for conduct in connection with a matter pending before a tribunal,* the rules of the jurisdiction in which the tribunal* sits, unless the rules of the tribunal* provide otherwise; and
- (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes* the predominant effect of the lawyer’s conduct will occur.Disciplinary Authority
  The conduct of a lawyer admitted to practice in California is subject to the disciplinary authority of California. (See Bus. & Prof. Code, §§ 6077, 6100.) Extension of the disciplinary authority of California to other lawyers who provide or offer to provide legal services in California is for the protection of the residents of California. A lawyer disciplined by a disciplinary authority in another jurisdiction may be subject to discipline in California for the same conduct. (See, e.g., § 6049.1.)

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Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

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It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

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Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – PoliceOfficer$ Filing False Report$

We also have the Spencer v. Peters– PoliceFabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a FalsePoliceReport in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Know Your RightsClick Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Parent’s Rights & Children’s Bill of Rights

Cal State Bar PDF to read about Three Parent Law – The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn moreHERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment

Retrieving Evidence / Internal Investigation Case

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports, and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery RequestsOCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization FormRelease of Case Information – Click Here

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIAClick Here

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutorial Misconduct

Judicial & Prosecutorial Conduct

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Epic SCOTUS Decisions

The Truth News — Fri, 24 Jan 2025 07:33:11 +0000

https://goodshepherdmedia.net/wp-content/uploads/2022/08/Tom-Petty-And-The-Heartbreakers-I-Wont-Back-Down.mp3

Epic SCOTUS Decisions

To learn more about the awesome new ruling that allows for going after a tyrant government office or government officer read below 2022 ruling!!!!

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well – 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the
attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, bur den, delay or violate legal rights.

Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

learn about how NOT TO violate your employers rights, after all civil servants work for the people, the tax payer. Got it DA Federal Civil Right$ $tatute$

Thompson vs Clark new-supreme-court-ruling-makes-it-easier-to-sue-police/

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines $ubject to Open Records Requests

Other Pro$ecutor Caselaw:

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City, of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer. The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. § 1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause. The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.) held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6 (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

https://steeringlaw.com/police-misconduct-articles/can-you-sue-the-police-for-malicious-criminal-prosecutions/

Constitutional Tort Law and Legal Definition

Constitutional torts are violation of one’s constitutional rights by a government servant. Constitutional tort actions are brought under 42 USCS § 1983 against government employees seeking damages for the violation of federal constitutional right, particularly those arising under the Fourteenth Amendment and the Bill of Rights.

42 USCS § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

thompson-v-clark-364-f-supp-3d-178/

thompson-v-clark-holds-fourth-amendment-claim-under-%c2%a7-1983-for-malicious-prosecution

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

cited https://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job 
conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government
does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders,
addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the
specter of personal liability.

Spencer v. Peters

After several unsuccessful appeals, the relevant facts of which will be discussed throughout this order, Mr. Spencer's prison 
sentence was commuted to community supervision in 2004 by then Governor Locke. Dkt. 63-18. Following his release from prison.

This is a great hearing you click below you can hear the proceedings audio and discussion. This an excellent source for young hungry new attorneys! good luck in your career, work hard, good ethics, good nature, respect God in your work and doings just as you steer clear of harming attorney client privilege respect the attorney God privilege and do right by him! use your fantastic mind to work around the obstacles while still respecting God and his expectations he has for all of us. Live right, you only live once! YOLO is not a reason to go nuts, its a reason to straighten ones morals inline with the creator before your time is up. Now that is a lottery ticket you don’t want to forget buy, heaven beats anything you get here…. and you pay for it by doing good here now for God!
spencer-v-peters/

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

you can read more on this gerardo-rodarte-v-joseph-gutierrez/

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Excerpts taken from SCOTUS around Robin v. Hardaway

Supreme court cases from digging around Robin v. Hardaway 1790.
Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

424 F.2d 1021 US v. Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

DA Caitlyn Harrington did this to me above she is the dumb cunt i called her

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NAFFE v. FREY It is uncontested that Naffe is domiciled in Massachusetts, Frey is domiciled in California, and the County of Los Angeles is a citizen of California for purposes of diversity jurisdiction, see Moor v. Alameda Cnty., 411 U.S. 693, 717–18, 721–22 (1973). The parties are thus “completely diverse.” See Strawbridge v. Curtiss, 7 U.S. 267, 267–68 (1806).

Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987), McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ”

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193 Notification of legal responsibility is “the first essential of due process of law”. See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.” Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts!

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS

Overview of Contract Clause

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.

People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.

Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

The common law is in force in Michigan, except so far as it is repugnant to, or inconsistent with, the Constitution or statutes of the state. Stout v. Keyes (1845) 2 Doug. 184, 43 Am. Dec. 465.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

“He is not to substitute even his juster will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11,1919, entitled, “Is there a Common Will?”

“… The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden, 27 U.S. 1

No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of goverState v. Suttonnment, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.” The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

Supreme Court Justice Bandeis eloquently affirmed his condemnation of abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared: “Decency, security, and liberty alike demand that Government officials shall be subjected to the same rules of conduct that are commands to the Citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.” To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator ”

State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”. “The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.”

“In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

“The People of a State are entitled to all rights which formerly belonged to thePiper v. PearsonKing by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Ex parte – Frank Knowles, California Reports, Vol. 5, Page 302 (1855) “A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the States, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions.”

Manchester v. Boston, Massachusetts Reports, Vol. 16, Page 235 (1819) “The term, citizens of the United States, must be understood to intend those who were citizens of a state, as such, after the Union had commenced, and the several states had assumed their sovereignties. Before this period there was no citizens of the United States…”

Butler v. Farnsworth, Federal Cases, Vol. 4, Page 902 (1821) “A citizen of one state is to be considered as a citizen of every other state in the union.”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

[Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1882)“… there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”

Income taxes Gregory v. Helverging, 293 U.S. 465, 1935 “The legal Right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted” 1895: In Pollock vs Farmers’ Loan & Trust Co, the Supreme Court rules that general income taxes are unconstitutional because they are unapportioned direct taxes. To this day, the ruling has not been overturned. January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional; The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes; The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment. …the [16th] Amendment contains nothing repudiating or challenging the ruling in the Pollock Case that the word direct had a broader significance since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution — a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended, that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself and thereby to take an income tax out of the class of excises, duties and imposts and place it in the class of direct taxes… Indeed in the light of the history which we have given and of the decision in the Pollock Case and the ground upon which the ruling in that case was based, there is no escape from the Conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided, that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment… 1939: Congress passes the Public Salary tax, taxing the wages of federal employees.

1940: Congress passes the Buck Act authorizing the federal government to tax federal workers living in the States. 1942, Congress passes the Victory Tax under Constitutional authority to support the WWII effort. President Roosevelt proposes a voluntary tax withholding program allowing workers across the nation to pay the tax in installments. The program is a success and the number of tax payers increases from 3 percent to 62 percent of the U.S. population. 1944: The Victory Tax and Voluntary Withholding laws are repealed as required by the U.S. Constitution, however, the federal government continues to collect the tax claiming it’s authority under the 1913 income tax and the 16th Amendment. Erie Railroad v. Tompkins, 1938 Supreme Court of the United States had decided on the basis of Commercial (Negotiable Instruments) Law: that Tompkins was not under any contract with the Erie Railroad, and therefore he had no standing to sue the company. Under the Common Law, he was damaged and he would have had the right to sue. Hence, all courts since 1938 are operating in an Admiralty Jurisdiction and not Common Law courts because lawful money (silver or gold coin) does not exist. Courts of Admiralty only has jurisdiction over maritime contracts on the high seas ad navigable water ways. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if ‘each provision requires proof of an additional fact which the other does not.’ Id. at 304.

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894) Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) “The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1 “All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the ‘same elements test’ set forth in Blockburger when it over-ruled the ‘same conduct’ test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the ‘same elements’ test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911)

(early precedent establishing that in a subsequent prosecution ‘[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other’).

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAW Ashby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin] [191 F.Supp 245 (D.C.N.Y. 1960)]

City of Canton v. Harris, 498 U.S. 378 (1989) “failure to train” train its officers adequately with respect to implementing the following Department policies:

FLYER & NEWS WEBSITE LAW

Flyers US constitutional rights, Freedom of Speech & Press

There shall be no Law passed to abridge or restrain freedom of speech or the press. Freedom of speech encompasses all manner of expression, both verbal and non-verbal

U.S. Supreme Court

Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. “In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.
State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
Sable Communications of California v. Federal Communications Commission (1989)
When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Cohen v. California (1971) 403 U.S. 15 (1971), The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.
Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.

People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speech words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
Karlan v. City of Cincinnati (1974) Police officers cannot use “fighting words,” as an excuse to abuse because police officers are trained to exercise a higher degree of constraint than the average citizen.
Reno v. American Civil Liberties Union (1997)
speech on the Internet is entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
Bible Believers v. Wayne County (6th Cir.) (2015)
The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
Albert Krantz v. City of Fort Smith
A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
Lucas v. Arkansas (1974)416 U.S. 919 (1974)
The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
Lewis v. City of New Orleans (1974) The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
City of Houston v. Hill (1987) In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
STATE of Iowa, Appellee, v. William James FRATZKE, Appellant – William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home. the case law link was above, but you can actually read the newspaper article of his exact doings here
People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE, v. DAVID THOMAS POWERS determined although they may be a little annoying they were NOT ILLEGAL!
Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
such as condemnation of political officials (even left expressly for that official).
Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015

Watch this different display of US RIGHTS in a JERSEY OFFICIAL MEETING by ANGRY CONSTITUTIONALIST https://www.youtube.com/watch?v=0wUH7GJjlYQ

It doesn’t look like our constitutional right of freedom of the press is going away any time soon.

FREEDOM OF THE PRESS DEFINITION

The freedom of communication and expression through media and/or published material. Flyers are communication and expression through published media material.

HANDBILL DEFINITION

A single page leaflet advertising events, services or other activities. Flyers are typically used by individuals or business’ to promote their product or services.

They are a form of mass marketing or small scale community communication. Information News Flyers are a legal form of community communication handbills by definition. A Website is a Digital Handbill of leaflet, it is the digital form of handing them out, how else could one get a peacefully assembly organized in todays society 2022

LITTER DEFINITION

Litter consists of waste products
Information News Flyers (same as LA Times or LA Weekly or other Leaflet Information/News) are not waste products or litter by legal definition and to claim or mislead holds no water to the law.
Flyers are not trash by legal definition and to mislead and claim they are would hold no water to the law.

TRASH DEFINITION

Unwanted or undesired waste material.

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly. “The press was to serve the governed, not the governors.” —U.S. Supreme Court Justice Hugo Black in New York Times Co. v. United States (1971)

excerpts taken from NO Law requires you to record / pledge your private automobile

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.” Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.” In Re Newman (1858), 9 C. 502.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7. If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional. Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …, it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured… and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“. As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury. You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970); U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co. v. Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950. and; “Party cannot be bound by contract that he has not made or authorized.” Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

The State cannot diminish rights of the people. Hurtado v. California, 110 U.S. 516.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.” Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system; but it is commonly used as the designation of a court of special, limited, or statutory jurisdiction, whose record must show the existence and attaching of jurisdiction in any given case, in order to give presumptive validity to its judgment. In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.” Nestor v. Hershey, 425 F2d 504.

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over. Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind. 336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee. Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property. This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.” Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives. Not one of them has a right to ignore or disregard these mandates...” John F. Jelko Co. vs. Emery, 193 Wisc. 311; 214 N.W. 369, 53 A.L.R., 463; Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

The People are the Sovereign!

People are supreme, not the state. Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people. State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Private Corporate State / Municipality Policy Enforcement Officer
a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution. Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167. (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.” Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536. (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60; Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

Call Recording In California

Improperly filed no facts and filed as felony it can only be a misdemeanor

objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774–776; Vera v. O’Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.

Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488 (citation omitted). A person’s subjective belief that the call should not be recorded or monitored is not the test.

Courts that have analyzed the issue of whether a communication is confidential under § 632 have considered the totality of the surrounding circumstances to determine whether the parties had an objectively reasonable expectation that the conversation would not be recorded or overheard. Kight, supra, 200 Cal.App.4th at 1397.

Factors relevant to determining whether an objectively reasonable expectation of privacy exists (that is, that no one is secretly recording or listening to a phone conversation) include, but are not limited to:

who initiated the call,
the purpose and duration of the call,
the customer’s prior relationships, experiences and communications,
whether confidential information was conveyed, and, or course
whether an admonition/disclosure/warning was given during the call at the outset, or otherwise. See Kight, supra, 200 Cal.App.4th at 1397 (citing Kearney); see also Flanagan, supra, 27 Cal.4th at 776–77 (remanding for consideration whether son had objectively reasonable expectation that his private telephone conversations with his father were not being recorded by the father’s wife); Nissan Motor Co., Ltd. v. Nissan Computer Corp. (C.D.Cal.2002) 180 F.Supp.2d 1089, 1093–94 (conversations between counsel concerning litigation related matters were deemed confidential communications within the meaning of Section 632); People v. Pedersen (1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was carried out are such that the court could reasonably conclude that it was no different than other business meetings of the parties that were not”).

The supposed victim did not have a reasonable expectation that his or her call would not be overheard or recorded. Kearney, supra, 39 Cal.4th at 117-118.

As a corollary to this element, obtaining consent to record or monitor is its own defense, but, of course, notification and consent also undermine the expectation of privacy element. See Kearney, supra, 39 Cal.4th at 100, 118.

plaintiff probably needs not to have suffered appreciable, compensable, or even nominal “damage” to assert a viable claim. But compare FAA v. Cooper (2012) ___ U.S.____, 132 S.Ct. 144

“The statute of limitations in which to commence an action for invasion of privacy is one year.” Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880. The statute of limitations on a cause of action under Penal Code § 632 commences when the plaintiff knew, or should have known, of the defendant’s unlawful acts. Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97-98.

Where a caller is made aware that the call or conversation was, or is, being monitored or recorded, there is no violation of § 632 because there is no objectively reasonable expectation of privacy. Id. at 100, 118; Weiner, supra, 2012 WL 3632025 at *3, fn. 2.Moreover, by continuing with the conversation after being so warned, consent is given by implication. See Kearney, supra, 39 Cal.4th at 100, 118.

In any event, where the plaintiff knows the call is being recorded and goes forward without objection and participates anyway, consent should be implied. See Kearney, supra, 39 Cal.4th at 100, 118.

Under restricted circumstances, even an illegal recording can be used in a court of law. While it could not be used to present affirmative evidence in the case or to prove a point, it can be used to prevent perjury of a witness. In Frio v Superior Court (1988) 203 Cal.App.3e 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury.

the limits on use of that evidence. In People v Crow (1994), the court stated, “Evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence..”

Prior decisions in Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907 explain that “while privacy expectations may diminish significantly in the workplace, in the workplace, they are not lacking altogether.” Sanders v. American Broadcasting Cos.

My workplace cameras record 24/7 in safe workplace areas

https://goodshepherdmedia.net/a-brief-overview-of-call-recording-in-california/

learn more

Right to Truth – Victims’ Bill of Rights – Prop 8 1982

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.” Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights. “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.” (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In Land v. Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.” Brady v. Roosevelt, 317 US 575 (1943); FHA v. Burr, 309 US 242 (1940); Kiefer v. RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared, that “…where any state proceeds against a private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.” Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662; Bothke v. Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved agency — but only in a “ministerial” and not a “discretionary capacity…” Thompson v. Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction. Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160; Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief. “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622

“Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,
it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.

Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”

Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.” In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107; San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.” Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984). “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his cannot protect us. All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey. 1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

– Article 1 of the Bill of Rights – guarantees freedom of religion-
Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1. Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

for true knowledge of how sophisticated the legal minds of our forefathers were read how intricate their minds worked absent of all modern inventions including modern internet free schooling.

California Civil Code Section 52.1 California Civil Code Section 52.1 – The Bane Act

Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties. California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here california-civil-code-section-52-1/

Civil Code Section 52.1, the Tom Bane Civil Rights Act, authorizes suit against anyone who by threats, intimidation, or coercion interferes with the exercise or enjoyment of rights secured by the state or federal Constitutions or laws without regard to whether the victim is a member of a protected class. (Civ. Code § 52.1.)

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

to read the full statute click link below
cited

42-us-code-1983-civil-action-for-deprivation-of-rights/

Recoverable Damages Under 42 U.S.C. Section 1983

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rights

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof

How to file a complaint of Police or other Government Official Misconduct Click Here

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights. Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

To learn more about SB 2 Police Decertification Process – Changes to Government Code – senate-bill-2-police-decertification-process/
SB 2, Expanding Civil Liability Exposure – sb-2-expanding-civil-liability-exposure/

Pro Se Case Law

Bruce Baldinger v. Antonio Ferri, No. 12-4529 (3d Cir. 2013)

Haines v. Kerner, 404 U.S. 520 (1971)
Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff’s complaint legally sufficient, Supreme Court found that pro se pleadings should be held to “less stringent standards” than those drafted by attorneys.

Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.

Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
Plaintiff who consulted defendants’ law firms regarding workers’ compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff’s representation was limited only to filing workers’ compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim.

Johnson v. Board of County Comm’rs, 868 F.Supp. 1226 (D. Colo. 1994)
Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff’s official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants’ misrepresentation of pro se status in violation of ethical rules.

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to ghostwrite pleadings for pro se plaintiffs abused additional leeway given to pro se filings.

U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney’s duty of candor to the court, interferes with the court’s ability to supervise the litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant.

Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order.

Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant’s pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules.

Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of “ghost writing,” which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of “unbundled” or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.

Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.

Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.

Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
In a lawsuit, plaintiff’s counsel of record requested that another firm make a “special appearance” at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true “special appearance”.

Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct.

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney’s assistance to the court upon filing.

Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
Attorney, with matrimonial client’s consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.App.)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.

Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official “attorney of record”. The court found that it was not bound by agreements made between client and attorney and that a court may “require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct”. The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal.

Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not “abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant”.

Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.

Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.

Elmore v. McCammon (1986) 640 F. Supp. 905
“… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.”

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.”

Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals
The plaintiff’s civil rights pleading was 150 pages and described by a federal judge as “inept”. Nevertheless, it was held “Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff’s Pleadings without regard to technicalities.”

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
“Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.”

Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”

Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
“The practice of law cannot be licensed by any state/State.”

Sims v. Aherns, 271 SW 720 (1925)
“The practice of law is an occupation of common right.”

CITED http://caught.net/prose/proserulings.htm

Pro Se Forms and Forms Information (Tort Claim Forms here as well)

Introducing Digital Evidence in California State Courts

Click Here to Read Supreme Court Rulings and Laws Regarding the Introduction of Digital Evidence in California

Mandated Reporting Laws

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up

https://goodshepherdmedia.net/wp-content/uploads/2022/11/laws-EVERYONE-should-know-especially-cops.mp4

https://www.youtube.com/@DonutOperator

California Constitution
Article VI – Judicial
Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

(Sec. 13 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess.)

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police & Civilians real Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment

American Civil Liberties Union of Illinois v. Alvarez – 1st Amendment

Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional – 1st Amendment

303 Creative LLC v. Elenis – 1st Amendment

Texas v. Johnson – Offensive? – 1st Amendment

Snyder v. Phelps (2011) – Offensive? – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters

Learn More About True Threats Here below….

Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Speech Is Not Violence and Violence Is Not Speech

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Selected Issues in Malicious Prosecution Cases

Mi$Conduct – Judicial Mi$Conduct Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC – Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

Misconduct by Government Know Your Rights Click Here

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court?

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Retrieving Evidence / Internal Investigation Case

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

Cleaning Up Your Record

Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

PARENT CASE LAW

RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law Appeal – Learn about appealing a Family Court Decision Here

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

Father’s Rights and Parents Rights THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings

GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

Please take time to learn new UPCOMING

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People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

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People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

People v. Superior Court (Greer)

[S.F. No. 23505. Supreme Court of California. March 30, 1977.]

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; JOHN MICHAEL GREER et al., Real Parties in Interest

(Opinion by Mosk, J., with Tobriner, Acting C. J., Clark and Richardson, JJ., and Sullivan, J., concurring.)

COUNSEL

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Derald E. Granberg, Deputy Attorney General, for Petitioner.

Robert N. Tait, District Attorney (San Luis Obispo), and Daniel A. Hilford, Deputy District Attorney, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Patrick R. Murphy, Public Defender, Charles H. James, Assistant Public Defender, and Michael J. Oliver for Real Parties in Interest.

Ephraim Margolin and Nicholas Arguimbau as Amici Curiae.

OPINION

MOSK, J.

The People seek a writ of mandate compelling respondent trial court to permit a district attorney to conduct a prosecution of a serious criminal charge despite the fact the court is convinced the prosecutor suffers from a conflict of interest which might prejudice him against the defendants and undermine his impartial exercise of judgment. The Attorney General asserts that judicial intervention disqualifying the district attorney violates the principle of the separation of powers (Cal. Const., art. III, § 3) by usurping a function reserved to the executive. We conclude the separation of powers contention lacks merit, and that trial courts have the authority to recuse prosecuting attorneys in appropriate circumstances. We further find no abuse of that power by [19 Cal. 3d 259] the trial judge herein, and therefore conclude that the writ should be denied.

Steven Anderson was killed on July 5, 1975, in Contra Costa County. On December 5 the Contra Costa District Attorney filed an information against defendant Rose Anderson (the victim’s ex-wife) and defendant John Michael Greer, charging them with murder. The information also alleged, as to both defendants, the “special circumstance” that the murder was carried out pursuant to an agreement to give and accept valuable consideration.

Both before and after the filing of the information defendants sought to have the district attorney disqualified, alleging a conflict of interest arising largely from the employment in the district attorney’s office of the victim’s mother, Martha Anderson. fn. 1 On January 8, 1976, the superior court granted defendants’ motion to recuse the district attorney. The court made its ruling on the basis of evidence in the form of sworn declarations and testimony taken at the time of the preliminary hearing.

As might be expected, the circumstances which gave rise to this unusual order were themselves unusual. Martha Anderson had been employed by the Contra Costa District Attorney as a “discovery clerk” for over a year, and was assigned to the very office in which the prosecution of this case was being handled. Her grief over her son’s death was at times made evident to her fellow workers. In addition, the prosecution’s theory involves proof of a protracted dispute between defendant Rose Anderson and the victim over the custody of their child, Paul. As grandmother of the child, not only is Martha Anderson admittedly well acquainted with the details of this controversy, but she is scheduled to be a material witness for the prosecution. Moreover, she potentially stands to gain custody of the child if defendant Rose Anderson is convicted; indeed, at the time of the preliminary hearing a contested guardianship proceeding between the two women was pending.

The latter dispute arose when, upon the arrest of Rose Anderson, the police delivered Paul into the custody of Martha Anderson. Defendants contend the arrest was in derogation of an offer made by Rose [19 Cal. 3d 260] Anderson’s attorney for her voluntary surrender if the district attorney proposed to take her into custody. Evidence was introduced to show that the police acted after consultation with the district attorney’s office, and gave the child into the custody of Martha Anderson despite their knowledge of defendant Rose Anderson’s arrangements to place him elsewhere. Defendants argue that this incident adds to the appearance of a conflict of interest on the part of the district attorney’s office. fn. 2

The trial court concluded in these circumstances that the district attorney should be disqualified. The court then issued two orders directed to the Attorney General, who had the power to assume the prosecution under Government Code sections 12550 and 12553. fn. 3 The first order, issued on January 8, 1976, in conjunction with the disqualification ruling, cited the Attorney General “to appear” before the court “to show cause why he should not prosecute” the case. Upon the Attorney General’s appearance on the order to show cause, the court on January 20 reaffirmed its earlier decision to disqualify the district attorney and issued a second order, directing the Attorney General to “appear” in court on January 27 — the date set for a ruling on defendants’ motion to dismiss under Penal Code section 995 — and on January 29, the scheduled date of a trial readiness conference. Trial remained set for February 2. However, on January 23 the Attorney General obtained a [19 Cal. 3d 261] stay of the proceedings pending a decision on his application for an extraordinary writ requiring the trial court to vacate its orders of January 8 and 20.

We divide our review of the writ application into four parts. The first evaluates the Attorney General’s claim that the doctrine of separation of powers generally prevents trial courts from disqualifying the designated representatives of the executive branch in criminal cases. Second, we consider whether, even if such power exists, it may be exercised to disqualify a prosecutor on the ground that he suffers a conflict of interest which may prejudice him against the accused. We then reach the question whether the court in this case abused such discretion as it had. Our final concern is the validity of the trial court orders which followed the disqualification order and were directed to the Attorney General.

I. Power of the Trial Court to Disqualify a District Attorney.

Undeniably there are circumstances in which the participation of a district attorney in a criminal trial as prosecutor would be improper. For example, it would not be proper for such an attorney to prosecute a client or former client, without that client’s consent, for a crime “relating to a matter in reference to which [the attorney] has obtained confidential information by reason of or in the course of his employment by such client or former client.” (Rules of Prof. Conduct, rule 4-101; Young v. State (Fla.App. 1965) 177 So. 2d 345; State v. Leigh (1955) 178 Kan. 549 [289 P.2d 774]; People v. Gerold (1914) 265 Ill. 448, 471-480 [107 N.E. 165, 175-178]; see Corbin v. Broadman (1967) 6 Ariz.App. 436 [433 P.2d 289]; Annot., 31 A.L.R.3d 953, 963-978.) Nor should a prosecutor try a defendant with whom he is embroiled in civil litigation. (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709; Sinclair v. State (1976) 278 Md. 243 [363 A.2d 468].)

The Attorney General does not defend the foregoing hypothetical prosecutorial conduct, and, absent constitutional considerations, it seems clear a trial court could disqualify the attorney in question. fn. 4 However, [19 Cal. 3d 262] the Attorney General asserts that the constitutional doctrine of the separation of powers severely restricts the occasions upon which the courts may act to prevent such improprieties. Action by a judge to disqualify a district attorney who proposes to proceed despite an undeniable conflict of interest is said to infringe on the executive power of designating the People’s attorney in a criminal prosecution. While the Attorney General allows for some judicial sanctions against improper prosecutorial participation, he contends these remedies are limited to reversal of any resulting conviction and professional discipline of the offending prosecuting attorney. He further argues that any permissible judicial action must be limited to those situations in which failure of the court to act would result in a violation of “minimum due process standards.”

Article III, section 3, of the California Constitution provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” [1] Judges must be as vigilant to preserve from judicial encroachment those powers constitutionally committed to the executive as they are to preserve their own constitutional powers from infringement by the coordinate branches of government. [2a] The cases which have sought to define the boundaries of executive discretion in a prosecutorial context, however, lend little support to the People’s attack on the authority of a court to disqualify a prosecutor whose participation at trial would be manifestly improper.

The Attorney General places emphasis on People v. Municipal Court (Pellegrino) (1972) 27 Cal. App. 3d 193 [103 Cal. Rptr. 645, 66 A.L.R.3d 717], and People v. Smith (1975) 53 Cal. App. 3d 655 [126 Cal. Rptr. 195]. Pellegrino upheld the district attorney’s authority over the decision whether to charge an individual with a criminal offense. Noting the provision that all prosecutions shall be conducted by the authority of the People of the State of California (Gov. Code, § 100, subd. (b)), the Court of Appeal barred a trial court from accepting for filing criminal charges instituted by private citizens without the approval of the district attorney. Smith involved a parallel situation, in which a trial court attempted to consummate its own “plea bargain” over the district attorney’s objection, by allowing the defendant to withdraw his not guilty plea to the proffered charge and then in effect charging him with a different, unincluded offense to which a guilty plea was accepted. Both cases [19 Cal. 3d 263] enforced the allocation to the executive of the function of determining which persons are to be charged with what criminal offenses.

However, executive control over the charging function, as sustained in Pellegrino and Smith, is not itself threatened when a trial court disqualifies a district attorney from participation in trial and pretrial proceedings. That disqualification affects only the identity of the state’s representative; it does not in itself alter the charges against the defendants. After disqualification of the district attorney, the Attorney General may still choose to enter the case and proceed against the defendants on the same charges under sections 12550 and 12553 of the Government Code. fn. 5

Furthermore, by emphasizing the executive character of the charging decision the Attorney General overlooks the fact that once the state is ready to present its case in a judicial setting “the prosecutorial die has long since been cast.” (People v. Superior Court (On Tai Ho) (1974) 11 Cal. 3d 59, 65 [113 Cal. Rptr. 21, 520 P.2d 405].) In rejecting separation of powers claims similar to those raised here, we have frequently noted that “When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.” (People v. Tenorio (1970) supra, 3 Cal. 3d 89, 94; Esteybar v. Municipal Court (1971) 5 Cal. 3d 119, 127 [95 Cal. Rptr. 524, 485 P.2d 1140]; People v. Superior Court (On Tai Ho) supra, 11 Cal.3d at p. 65.)

Indeed, a categorical denial of the trial court’s authority to ever disqualify a district attorney, far from protecting a constitutional power of the executive, would excise a significant aspect of the judge’s traditional power to enforce the law. It has long been established in civil [19 Cal. 3d 264] cases that the court has the power, on motion of a party, to disqualify an opposing attorney from participating in a trial when, for example, the attorney improperly seeks to proceed against a former client. (Weidekind v. Water Co. (1887) 74 Cal. 386, 388 [19 P. 173]; Elberta Oil Co. v. Superior Court (1930) 108 Cal. App. 344 [291 P. 668]; Meehan v. Hopps (1955) supra, 45 Cal. 2d 213; Grove v. Grove Valve & Regulator Co. (1963) 213 Cal. App. 2d 646, 651-652 [29 Cal. Rptr. 150].) And the Attorney General concedes that in similar circumstances a prosecutorial conflict of interest in criminal cases may require reversal of a conviction in the appellate courts. Yet if the trial judge has no authority to recuse a district attorney, in such a case he could do no more, short of outright dismissal, than helplessly preside over a criminal proceeding which he finds improper and which appears destined for reversal on appeal. fn. 6 Thus, although it is phrased in terms of the separation of powers clause, the argument of the Attorney General that the trial court lacks any disqualification power reduces in dimension to the position that appellate courts are capable of enforcing the law but trial courts are not. Not only does this contention contemplate a waste of judicial resources in futile trials and inevitable reversals on appeal, it is alien to a fundamental premise of our judicial structure, i.e., that trial judges, like appellate courts, are competent to apply the law.

Nor can we accept the argument that before he recuses a prosecutor, the trial judge must first determine that failure to do so would permit a violation of the defendant’s basic constitutional rights. fn. 7 In a trial process which, as noted above, is “fundamentally judicial in nature” (People v. Tenorio, supra, 3 Cal.3d at p. 94), the power of the court under the separation of powers doctrine is not exhausted by the bare enforcement of constitutional guarantees of a fair trial. (See State v. Basham (1969) 84 S.D. 250, 258-259 [170 N.W.2d 238, 242].) Indeed, those constitutional provisions would seem better served when judges have discretion to [19 Cal. 3d 265] prevent even the possibility of their violation. Individual instances of unfairness, although they may not separately achieve constitutional dimension, might well cumulate and render the entire proceeding constitutionally invalid. The trial judge need not delay until the last straw of prejudice is added, by which time it might be too late to avert a mistrial or a reversal. Nor has the Attorney General demonstrated that the performance of any essential executive function requires judges to consciously permit improper prosecutorial participation up to the constitutional limit. In this context, article III, section 3, of the Constitution does not demand trials in which there is no middle ground between absolute executive discretion and constitutionally mandated judicial intervention.

[3] This is not to imply that the executive loses all discretion once a criminal proceeding has begun. The executive has general authority to choose who will prosecute the case, and that representative is vested with the traditional powers of prosecutors in the conduct of criminal trials. (Cal. Const., art. V, § 13; Gov. Code, §§ 12550, 12553.) But “when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.” (Italics omitted.) (People v. Superior Court (On Tai Ho) supra, 11 Cal.3d at p. 66.) Thereupon the discretion of the executive — as that of any party to the proceeding — becomes subject to the supervision of the trial court. For example, although a court may not instruct an attorney which arguments he shall make and when, it may order him to cease a prejudicial, profane, insolent, unconstitutional or other improper argument which threatens the integrity of the trial. [4] The court may enforce its orders through the contempt power (Hallinan v. Superior Court (1925) 74 Cal. App. 420, 426 [240 P. 788]; DeGeorge v. Superior Court (1974) 40 Cal. App. 3d 305 [114 Cal.Rptr. 860]); and although rarely invoked against a public official, that power is available against district attorneys as well as other trial participants (Gillen v. Municipal Court etc. (1940) 37 Cal. App. 2d 428 [99 P.2d 555]). [2b] Similarly, while judges do not have the power to direct the executive’s choice of a representative for the People, the Constitution does not deny trial courts authority to disqualify a particular representative when his participation would taint the proceeding. The disqualification of a prosecutor in such a case does not impermissibly infringe on the executive’s power to select a prosecutor any more than the general discretion of a prosecutor in presenting his case is inhibited when he is prevented from proceeding in an improper manner at trial. [19 Cal. 3d 266]

II. Prosecutorial Bias Against Defendant as Ground for Disqualification.

[5a] Having concluded that a trial judge has the authority in appropriate situations to recuse a prosecutor, we next consider whether this power is properly invoked on the basis of a determination that a district attorney’s conflict of interest may bias him against a defendant.

[6] A fair and impartial trial is a fundamental aspect of the right of accused persons not to be deprived of liberty without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; In re Murchison (1955) 349 U.S. 133, 136 [99 L. Ed. 942, 946, 75 S. Ct. 623]; People v. Lyons (1956) 47 Cal. 2d 311, 319 [303 P.2d 329]; In re Winchester (1960) 53 Cal. 2d 528, 531 [2 Cal. Rptr. 296, 348 P.2d 904].)

It is the obligation of the prosecutor, as well as of the court, to respect this mandate. (Berger v. United States (1935) 295 U.S. 78, 88 [79 L. Ed. 1314, 1321, 55 S. Ct. 629]; People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal. App. 2d 650, 676-678 [245 P.2d 633].) Nor is the role of the prosecutor in this regard simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy. The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted. (People v. Municipal Court (Pellegrino) (1972) supra, 27 Cal. App. 3d 193, 203-204; Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709, 713.) In all his activities, his duties are conditioned by the fact that he “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” (Berger v. United States (1935) supra, 295 U.S. 78, 88 [79 L. Ed. 1314, 1321]; People v. Lyons (1956) supra, 47 Cal.2d at p. 318; see also Ganger v. Peyton, supra, 379 F.2d at p. 713; United States v. Cox (5th Cir. 1965) 342 F.2d 167, 193 (Wisdom, J., concurring).

Thus not only is a judicial requirement of prosecutorial impartiality reconcilable with executive discretion in criminal cases, it is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his [19 Cal. 3d 267] functions with the highest degree of integrity and impartiality, and with the appearance thereof. fn. 8 One of the reasons often cited for the institution of public prosecutions is that “Americans believed that an officer in a position of public trust could make decisions more impartially than could the victims of crimes or other private complainants,” persons who often brought prosecutions under the older English system of criminal justice. (Miller, Prosecution (Am. Bar Foundation 1969) p. 295; see Meister v. People (1875) 31 Mich. 99, 103; 3 Holdsworth, A History of English Law (7th ed. 1956) p. 621, 9 Holdsworth, id., pp. 241, 244-245.) This advantage of public prosecution is lost if those exercising the discretionary duties of the district attorney are subject to conflicting personal interests which might tend to compromise their impartiality. In short, the prosecuting attorney “‘is the representative of the public in whom is lodged a discretion which is not to be controlled by the courts, or by an interested individual. …'” (Italics added.) (United States v. Cox, supra, 342 F.2d at p. 192.)

Of course, the prosecutor’s discretionary functions are not confined to the period before the filing of charges. As noted above, while the trial judge has the power to prevent actual prosecutorial misconduct in court, within those bounds the district attorney possesses the advocate’s traditional ability to conduct his case in the manner he elects. (See, e.g., People v. Pike (1962) 58 Cal. 2d 70, 86 [22 Cal. Rptr. 664, 372 P.2d 656] (voir dire examination); People v. Traylor (1972) 23 Cal. App. 3d 323, 332 [100 Cal. Rptr. 116] (granting of immunity); People v. Tuthill (1947) 31 Cal. 2d 92, 98 [187 P.2d 16] (use of particular witnesses or tests); People v. Eggers (1947) 30 Cal. 2d 676, 693 [185 P.2d 1] (choice of argument); People v. Silva (1953) 41 Cal. 2d 778, 782-783 [264 P.2d 27] (showing details of crime).) The prosecutor further retains the power to negotiate a plea bargain. (See People v. Smith (1975) 53 Cal. App. 3d 655, 658 [126 Cal. Rptr. 195]; Pen. Code, § 1192.1 et seq.) A district attorney may thus prosecute vigorously, but both the accused and the public have a legitimate expectation that his zeal, as reflected in his tactics at trial, will be born of objective and impartial consideration of each individual case. [19 Cal. 3d 268]

In Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709, a federal court was faced with a conviction obtained by a prosecutor who, at the time of trial, was also representing the defendant’s wife in a divorce proceeding against the defendant. The court found that “Such a conflict of interest clearly denied [defendant] Ganger the possibility of a fair minded exercise of the prosecutor’s discretion.” (Id., at p. 712.) Furthermore, the court rejected the state’s claim that the conflict should not result in reversal unless specific misconduct or prejudice against the defendant could be shown, declaring (at p. 714), “the State contends that the improper conduct resulted in no harm to Ganger. We cannot so assume. It is true that although charged with a serious assault that could have resulted in imprisonment to the extent of twenty years, Ganger was convicted of a lesser assault and sentenced to only six months. But we do not know and cannot now ascertain what would have happened if the prosecuting attorney had been free to exercise the fair discretion which he owed to all persons charged with crime in his court.” (Fn. omitted.) The court concluded that the prosecutor’s conflict of interest amounted to reversible constitutional error, observing that “We think the conduct of this prosecuting attorney in attempting at once to serve two masters, the people of the Commonwealth and the wife of Ganger, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment.” (Ibid.) fn. 9

Although we do not hold as a matter of law that the participation of the district attorney in this case would necessarily constitute a denial of due process, certainly the due process implications of prosecutorial bias form a background for our consideration of the scope of the trial judge’s power to recuse.

We have so far examined the problem of prosecutorial impartiality largely from the perspective of the accused. Society also has an interest in both the reality and the appearance of impartiality by its prosecuting officials: “It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.” (Fn. omitted.) (People v. Rhodes (1974) 12 [19 Cal. 3d 269] Cal.3d 180, 185 [115 Cal. Rptr. 235, 524 P.2d 363].) Similar considerations led the American Bar Association to adopt, in its Standards Relating to the Prosecution Function, a provision that “A prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.” (Approved Draft 1971, pt. 1, std. 1.2.)

[5b] For all the foregoing reasons we conclude that a trial judge may exercise his power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary functions of his office. fn. 10

III. Abuse of Discretion

The relative dearth of cases on the subject confirms that such conflicts rarely reach the trial courts. In this state it appears the issue is often resolved by intervention of the Attorney General acting under his statutory powers (fn. 3, ante), and nothing we say herein is intended to discourage that practice. In addition, district attorneys cannot be unduly sensitive in performing their prosecutorial duties. Of necessity they have substantial ties to the communities in which they serve, and might be expected in the natural course of events to become casually acquainted with persons who are subsequently the victims of criminal activity. These relationships seldom rise to the level of debilitating conflicts of interest.

[7] Nevertheless, on the record before us we cannot conclude that the trial judge abused his discretion in disqualifying the district attorney. [19 Cal. 3d 270] The victim of the homicide was the son of a member of the district attorney’s staff who worked in the very office in which the prosecution was being prepared. It was within the bounds of the court’s discretion to determine that the prosecutor might at least appear to have an emotional stake in the case of the sort which could disturb his exercise of impartial judgment in pretrial and trial proceedings. The circumstances surrounding the arrest of defendant Rose Anderson and the transfer of her child to the custody of Martha Anderson further support this ruling. fn. 11

Accordingly, we uphold that part of the trial court’s order which disqualifies the District Attorney of Contra Costa County from participating in the prosecution of these charges.

IV. The Orders Directed to the Attorney General

Our decision that the trial judge did not abuse his discretion in recusing the district attorney diminishes the practical importance of ruling on the propriety of the two additional orders directing the Attorney General to “show cause” why he should not prosecute and directing him to “appear” at two future proceedings. Presumably the Attorney General, pursuant to his duties and powers under article V, section 13, of the California Constitution and section 12553 of the Government Code, will carefully consider whether he will now assume prosecution of the case.

[8] Under Penal Code sections 995, 1385, and 1386, only the court may dismiss criminal charges once they have been filed. After disqualifying the district attorney, the court retained jurisdiction and the power to dismiss the charges in furtherance of justice. Whether the Attorney General intended to assume the prosecution was clearly relevant to the proper disposition of those charges. The court apparently sought to obtain this information by ordering the Attorney General to appear and to declare his position in the matter.

Interpreting the orders in this context, we conclude they were an appropriate incident to the court’s power under sections 1385 and 995, as well as within the scope of section 128 of the Code of Civil Procedure. As [19 Cal. 3d 271] noted above, the latter statute applies to “all … persons in any manner connected with a judicial proceeding … in every matter appertaining thereto,” language which is certainly broad enough to encompass the role of the Attorney General in this case. (Cf. Ligda v. Superior Court (1970) 5 Cal. App. 3d 811, 826 [85 Cal. Rptr. 744].) The mere obligation to appear in court in response to a directive to do so would not itself infringe on any powers of the Attorney General. The court did not order the Attorney General to prosecute the case, and we express no opinion on the propriety of such an order if made. If the Attorney General declines to assume this prosecution, and the court is convinced that the charges should not be dismissed, it will be appropriate at that time to consider the court’s options under the laws of this state. (See, e.g., Pen. Code, § 1130.)

The alternative writ is discharged and the peremptory writ is denied.

Tobriner, Acting C. J., Clark, J., Richardson, J., and Sullivan, J., concurred.

FN 1. These efforts included formal written requests to both the Attorney General and the Governor asking that they exercise their power under Government Code section 12550 (fn. 3, post) to transfer the prosecution to the Attorney General’s office. Both requests were declined.

FN 2. In addition to the evidence relating to the victim’s mother, testimony was received regarding the victim’s widow, a Contra Costa Superior Court typist-clerk. She admitted to copying confidential documents in the court files relating to the custody dispute, and delivering the documents to her husband before his death. Some of the information from those confidential files was allegedly used by the police in their investigation. It is suggested by defendants that the public employment of the victim’s widow further disqualifies the district attorney, in that, as clerk, she had frequent contact with members of the prosecutor’s staff. Defendants also suggest that her actions as clerk add to the appearance of a conflict of interest on the part of the district attorney. The trial court was in a better position than we are to assess the evidence in this regard. However, it would appear from the record that the connection between defendant’s widow and the prosecutor’s office was sufficiently attenuated to make the potential conflict, if any, created by her employment and actions secondary to the more evident conflict arising from Martha Anderson’s position in the district attorney’s office.

FN 3. Section 12550 provides: “The Attorney General has direct supervision over the district attorneys of the several counties of the State ….

“When he deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpenas or other process.”

Section 12553 provides in part: “If a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution.”

FN 4. Section 128 of the Code of Civil Procedure provides in part, “Every court shall have power: … 5. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto ….” Although in civil cases the disqualification power of the trial judge has been only suggestively traced to section 128 (see Meehan v. Hopps (1955) 45 Cal. 2d 213, 215 [288 P.2d 267]), the purpose and text of the statute are broad enough to encompass such a power. Furthermore, section 128 has been applied to criminal as well as civil cases. (See Cooper v. Superior Court (1961) 55 Cal. 2d 291, 301 [10 Cal. Rptr. 842, 359 P.2d 274]; Ligda v. Superior Court (1970) 5 Cal. App. 3d 811, 826 [85 Cal. Rptr. 744].)

FN 5. We do not mean to deny that the same conflict of interest which disqualifies a prosecutor from participating in the trial of a criminal case may not also taint the procedure by which the defendant was charged, if the same district attorney participated therein. (See discussion at fn. 8, post; see also Corbin v. Broadman (1967) supra, 6 Ariz.App. 436 [433 P.2d 289]; State v. Jones (1924) 306 Mo. 437 [268 S.W. 83]; Annot., 31 A.L.R.3d 953, 984-986.) Thus, if the trial court determines that a district attorney’s participation in the filing of a criminal complaint or the preliminary hearing on that complaint created a potential for bias or the appearance of a conflict of interest, it may conclude that the defendant was not “legally committed” within the meaning of Penal Code section 995, and the information should be set aside. (Cf. People v. Elliot (1960) 54 Cal. 2d 498, 502-503 [6 Cal. Rptr. 753, 354 P.2d 225].) Because that ruling simply denies the accusatory pleading any judicial effect, it raises no issue of interference with the executive charging function. (Cf. People v. Tenorio (1970) 3 Cal. 3d 89 [89 Cal. Rptr. 249, 473 P.2d 993].) The Attorney General himself concedes the “incongruity of ordering the district attorney removed from the prosecution but of not setting aside the information filed by the district attorney.”

FN 6. The possibility that upon being confronted with a disqualified prosecutor, a trial judge might as an initial step dismiss the charges under Penal Code section 1385 does not appear to have been considered by either the court below or the parties to this proceeding, and with good reason. Certainly a dismissal under section 1385 is less well adapted to the problem of prosecutorial conflicts of interest, and more intrusive on the executive, than the recusation of a particular prosecutor, which still may allow the executive to designate another representative and continue the cause.

FN 7. The disqualification of an attorney who attempted to prosecute a former client would, under this theory, be permissible only because required to avoid a violation of defendant’s right to counsel. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 15.) Other prosecutorial conflicts of interest might be proscribed as due process violations. (U.S. Const., 5th and 14th Amends., Cal. Const., art. I, § 7; see Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709.)

FN 8. The preservation of prosecutorial impartiality is perhaps most important during the charging process, the phase of a criminal proceeding when the prosecutor’s discretion is most apparent. As the court in Pellegrino noted, “the theme which runs throughout the criminal procedure in this state is that all persons should be protected from having to defend against frivolous prosecutions, and that one major safeguard against such prosecutions is the function of the district attorney in screening criminal cases prior to instituting a prosecution.” (Fn. omitted.) (27 Cal.App.3d at pp. 205-206.) Surely an essential aspect of this safeguard must be the prosecutor’s freedom from any personal or emotional involvement in a controversy which might bias his objective exercise of judgment.

FN 9. In Ganger the prosecutor’s conflict was arguably more serious than that which appears on the record before us. There was evidence that the prosecuting attorney in Ganger attempted to use the criminal prosecution to gain an advantage in the civil divorce action, a suit in which there was “the possibility that the size of his fee would be determined by what could be exacted from the defendant.” (Id., at p. 713.) No comparable improper conduct on the part of the district attorney is suggested here.

FN 10. The majority of jurisdictions which have been confronted with similar situations appear to be in accord. (See Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709; State v. Jensen (1917) 178 Iowa 1098 [160 N.W. 832]; State v. Cox (1964) 246 La. 748 [167 So. 2d 352]; State v. Marcotte (1956) 229 La. 539 [86 So. 2d 186]; State v. Tate (1936) 185 La. 1006 [171 So. 108]; Sinclair v. State (1976) supra, 278 Md. 243 [363 A.2d 468]; State v. Jones (1924) 306 Mo. 437 [268 S.W. 83]; People v. Krstovich (1972) 72 Misc.2d 90 [338 N.Y.S.2d 132]; Hall v. State (1923) 24 Okla.Crim. 197 [217 P. 229]; State v. Basham (1969) supra, 84 S.D. 250 [170 N.W.2d 238]; but see Brooks v. State (1969) 45 Ala.App. 196 [228 So. 2d 24]; Benton v. State (1944) 245 Ala. 625 [18 So. 2d 428]; State v. Williams (Iowa 1974) 217 N.W.2d 573; May v. Commonwealth (Ky. 1955) 285 S.W.2d 160, 162 (participation “perhaps permissible,” conviction reversed on other grounds); Commonwealth v. Dunlap (1975) 233 Pa.Super. 38 [335 A.2d 364] (participation of prosecutor improper but not grounds for reversal absent showing of prejudice); State v. Goodwin (1967) 250 S.C. 403 [158 S.E.2d 195] (prosecutor voluntarily withdrew); see also People v. Farnsley (1973) 53 Ill. 2d 537 [293 N.E.2d 600] (minimal participation at trial by assistant counsel); State v. Melerine (1959) 236 La. 929 [109 So. 2d 471] (insufficient conflict shown); State v. Bussa (1932) 176 La. 87 [145 So. 276] (same); Garton v. State (Mo. 1970) 454 S.W.2d 522 (same); State v. McKissic (Mo. 1962) 358 S.W.2d 1 (same); State v. Rosengard (1966) 47 N.J. 180 [219 A.2d 857] (same); Annot., 31 A.L.R.3d 953, 978-983.)

FN 11. Clearly the district attorney was not responsible for the creation of this potential conflict. Nor do we mean to impugn the motives or good faith of his office in seeking to conduct this prosecution. However, we are concerned with the potential for prosecutorial partiality and the appearance of a conflict of interest, both of which the trial court could have reasonably concluded existed in this case.

cited

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

Stanislaus County sued for wrongful death after man’s neck is broken during arrest by deputies

The Truth News — Mon, 05 Aug 2024 04:54:51 +0000

Stanislaus County sued for wrongful death after man’s neck is broken during arrest by deputies

This footage is edited clips, in chronological order, of the body camera footage of Stanislaus County Sheriff’s Office deputies detaining 39-year-old Anthony Silva, who died nearly a year later of complications from a broken neck. Silva’s family is suing the county in federal court for wrongful death. The full version of this footage was uploaded by The Civil Rights Lawyer on YouTube.

BY LAW OFFICES OF DALE GALIPO Stanislaus County is being sued in federal court for the alleged wrongful death of a homeless man after an encounter with law enforcement that was described in court filings as “an unjustified and excessive display of force.” Anthony Silva, 40, was detained by Stanislaus County Sheriff’s Office deputies at the Riverbank Community Center on Oct. 8, 2022, during the city’s Cheese and Wine Festival. While handcuffed, Silva was “forcibly slammed” to the ground as he was searched, according to the complaint filed on his family’s behalf.

Silva’s neck broke as a result — rendering him paralyzed from the neck down. He was moved from the ground to a bench, where he remained until medical care arrived about a half-hour later. Silva died from his injuries almost a year later on Sept. 10, 2023. “These tragic events are a direct consequence of the deeply flawed policies and practices at the Stanislaus County Sheriff’s Department,” the complaint reads. “The department’s inadequate and deficient training procedures have not only failed to prevent such instances of excessive force, but also, the department has ratified the unconstitutional conduct of their officers time and time again.” The Sheriff’s Office declined to comment for this article. “It is the policy of this office not to comment on matters of pending litigation,” it said in an email in response to questions from the Modesto Bee.

On whether there was an internal investigation by the Sheriff’s Office, the complaint says only, “On information and belief, the Deputy Does [as those who responded to the scene are called] were not disciplined, reprimanded in connection with this incident.” The Stanislaus County District Attorney’s Office is reviewing the use of force by the deputies. A spokesperson told The Bee it is “still gathering materials that are pertinent to the review.” Why deputies were called to the community center isn’t clear, other than it was some type of “disturbance,” according to Silva’s mother and the law office representing the family. But recently released body camera footage show every second of what happened once deputies arrived.

Dorothy Heimbach and her son Anthony Silva in the hospital following Silva’s encounter with Stanislaus County Sheriff’s Office deputies on Oct. 08, 2022. Dorothy Heimbach WHAT HAPPENED TO ANTHONY SILVA? The following are accounts taken from interviews, body camera video and the federal complaint referenced earlier in this story. Silva was experiencing homelessness when deputies detained him. His mother, Dorothy Heimbach, said the pandemic years had been rough for them both and that he had no permanent place to say. He regularly would sleep under the cover of a gazebo at the Riverbank Community Center, according to Heimbach.

The law office of Dale Galipo, representing Heimbach, maintains that whatever Silva was doing to elicit a call for service was not violent and was not illegal. Body camera footage shows deputies arriving at the community center on bicycles. They approach Silva, who is standing in the middle of a lawn area with his arms spread. Deputies immediately place him on the ground and attempt to place his hands behind his back and into handcuffs. The audio portion of this footage does not start until about 30 seconds in, so what was said upon the deputies’ initial contact with Silva apparently went unrecorded. As the audio begins, a deputy is heard telling Silva he is under arrest.

As deputies try to handcuff Silva, he screams, the video shows. His words are mostly unintelligible until deputies are able to secure the cuffs. Silva then turns over on the ground and asks the deputies, “What are you doing? You know my name and everything, what are you doing? Why’d you do that to my hand?” Heimbach and Galipo’s office have said that deputies knew who Silva was and that he had a mental disability. While Silva is lying on the grass, a deputy in the video is seen pointing to someone in the distance and directing another deputy to “tell her to turn her camera off.”

Silva is taken to a nearby gazebo, the same one he would regularly sleep under, to have his possessions searched. During the search, Silva is stood up — at which point he tries to jostle away from deputies. The deputies then put him down onto the concrete head-first. According to the complaint, this is the moment that two of Silva’s vertebrae were fractured, causing his quadriplegia. Silva immediately expresses pain and repeats the words, “I can’t breathe,” the footage shows. He then says, “I’m paralyzed.” to which a deputy responds, “No, you’re not.” As Silva moans on the ground, a deputy is heard saying, “You just caused more trouble for yourself, now you’re on a felony.”

Deputies then move Silva back onto the bench as they call for medical responders. As they all wait, deputies continue their search and find a bag of what one deputy theorizes is methamphetamine. They ask Silva when he last took it, so they can inform medical personnel. Deputies continue to try to communicate with Silva — who they find incoherent. When Silva won’t answer their questions, one tells him, “You’re not even listening to me.” At one point, a deputy ask another deputy if he was “red,” meaning recording, and then asks him, “You wanna mute real quick?” The audio is then muted for several seconds.

At no point in the video are deputies heard explaining why they are detaining him, nor reading him his Miranda rights. An ambulance doesn’t arrive until about 30 minutes later because one wasn’t available, deputies say as they talk among themselves in the video. Anthony Silva was left paralyzed from the neck down following an encounter with deputies from the Stanislaus County Sheriff’s Office on Oct. 08, 2022, a complaint says. Dorothy Heimbach WHAT THE FEDERAL COMPLAINT ALLEGES

In February 2023, Silva filed a claim for damages against the county. Upon his death, Heimbach took over as the plaintiff in the lawsuit. Heimbach’s attorneys allege that Riverbank deputies are not properly trained. In addition to the county being named as a defendant in the case, 10 “Does” are listed, described as employees of Stanislaus County. Presumably these “Does” include the deputies who detained Silva. Heimbach’s complaint alleges a number of things, including that deputies detained her son without probable cause, used excessive force, failed to provide him with timely medical aid and violated his civil rights as someone with a mental disability and who was homeless.

“It could happen to anybody because they’re not here to protect and serve. … We want good cops on the force, not bad cops. I want them to serve their time like we would if we were doing something wrong,” Heimbach said. She said the pandemic years were rough for both her and Silva. The death of her mother and Silva’s girlfriend meant they didn’t have a steady place to say. The fact that Silva was experiencing homelessness was cited in the complaint as part of its argument that his civil rights were violated. His time spent staying outside the Riverbank Community Center is why deputies were familiar with Silva. The complaint alleges that deputies knew he had a mental illness.

In addition to being paralyzed from the neck down, Silva experienced seizures and heart attacks during his nearly yearlong hospital stay. Heimbach said doctors told her he’d never be able to breathe or eat again without the help of a feeding tube and a ventilator and would be bedridden the rest of his life. He died after being taken off life support. “He just gave up. He told me, ‘Momma, please, let me go.’ He wasn’t going to survive it,” Heimbach said. The complaint further alleges that moving Silva after putting him on the concrete gazebo floor worsened his injuries. The time it took for medical aid to arrive is also listed as contributing to his death.

COMPLAINTS AGAINST RIVERBANK POLICE SERVICES In the complaint are criticisms of the Sheriff’s Office’s Riverbank Division, specifically with strong opinions coming from Heimbach and her attorneys. Riverbank contracts with the Sheriff’s Office for its police services. “It’s sad but the cops in riverbank are are brutal. They go too far,” said Heimbach. “They’re young and they’re stupid, as far as I’m concerned.” Meanwhile, Heimbach hopes that law enforcement can be held accountable just as the public is. “They should be treated just like we get treated,” she said. “We do something wrong, we go to jail, or we get our car towed, or something. If we murder somebody, we go to prison, you know, and they should be treated like this.” source

Due Process vs Substantive Due Process 5th & 14th Amendment

The Truth News — Sun, 07 Jul 2024 08:56:18 +0000

Due Process vs Substantive Due Process

Due Process 5th & 14th Amendment

Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unenumerated elsewhere in the U.S. Constitution.

Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this article concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation

The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states; the Bill of Rights was interpreted to only apply against the federal government, given the debates surrounding its enactment and the language used elsewhere in the Constitution to limit State power. (see Barron v City of Baltimore (1833)). However, this changed after the enactment of the Fourteenth Amendment and a string of Supreme Court cases that began applying the same limitations on the states as the Bill of Rights. Initially, the Supreme Court only piecemeal added Bill of Rights

protections against the States, such as in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897) when the court incorporated the Fifth Amendment’s Takings Clause into the Fourteenth Amendment. The Court saw these protections as a function of the Due Process Clause of the Fourteenth Amendment only, not because the Fourteenth Amendment made the Bill of Rights apply against the states. Later, in the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause “incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. For more information on the incorporation doctrine, please see this Wex Article on the Incorporation Doctrine.

Substantive due process

The words “due process” suggest a concern with procedure rather than substance, and that is how many—such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”—understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process—such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their ‘privileges and immunities’ under the federal Constitution” (see this Library of Congress Article: https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/due-process-of-law.html)

Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).

The promise of legality and fair procedure

Historically, the clause reflects the Magna Carta of Great Britain, King John’s thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain’s Seventeenth Century struggles for political and legal regularity, and the American colonies’ strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that the government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause is often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, the government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn’t say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If “due process” refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court’s struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen’s “power, immediate or remote, over those who make the rule”) controlled the state’s action setting the level of taxes; but if the dispute was about a taxpayer’s individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether.

Distinguishing due process

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver’s licenses, government jobs, and welfare enrollment are “rights” or a “privilege.” An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, a state job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had “property” would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served “at will” — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was “due,” constitutional “property” was no longer just what the common law called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient’s benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney’s help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court’s basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court’s preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action;
Second, 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;
Finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more likely to be able to find other “potential sources of temporary income” than a person who is arguably impoverished but provisionally denied welfare assistance. Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one’s medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency’s files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government’s claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that “resources available for any particular program of social welfare are not unlimited.” Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the “good-faith judgments” of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is “due,” the opinion emphasizes that each setting or program invites its own assessment. The only general statement that can be made is that persons holding interests protected by the due process clause are entitled to “some kind of hearing.” Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context.

Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization. Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy. Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost. Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural “due process” claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual’s position. The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of “due process” and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerations (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their perceived importance.

https://www.law.cornell.edu/wex/due_process

Substantive Due Process

Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action. Compare with procedural due process.

The Supreme Court’s first foray into defining which government actions violate substantive due process was during the Lochner Era. The Court determined that the freedom to contract and other economic rights were fundamental, and state efforts to control employee-employer relations, such as minimum wages, were struck down. In 1937, the Supreme Court rejected the Lochner Era’s interpretation of substantive due process in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) by allowing Washington to implement a minimum wage for women and minors. One year later, in footnote 4 of U.S. v. Carolene Products, 304 U.S. 144 (1938), the Supreme Court indicated that substantive due process would apply to: “rights enumerated in and derived from the first Eight Amendments to the Constitution, the right to participate in the political process, such as the rights of voting, association, and free speech, and the rights of ‘discrete and insular minorities.’”

Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:

The right to privacy, specifically a right to contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right to pre-viability abortion. Roe v. Wade, 410 U.S. 113, (1973)
The right to marry a person of a different race. Loving v. Virginia, 388 U.S. 1 (1967)
The right to marry an individual of the same sex. Obergefell v. Hodges, 576 U.S. 644 (2015)

cited https://www.law.cornell.edu/wex/substantive_due_process

The Fourteenth Amendment Due Process Clause

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance;
individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections;
fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

Procedural Due Process

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

“Incorporation” of the Bill of Rights Against the States

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines.

Substantive Due Process

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court’s decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.” The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the “privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers’ “freedom of contract,” even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this “economic substantive due process,” and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.” Griswold v. Connecticut. Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution. However, the Court found that unlike the “freedom of contract,” the “right to privacy” may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home. The “penumbra” theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold, the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman, maintaining that the project of discerning such rights “has not been reduced to any formula,” but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be “carefully descri[bed]” and, under that description, “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges. The Court’s approach in future cases remains unclear. source

Procedural Due Process Civil

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

ANNOTATIONS

GenerallyDue process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.⁷³⁷ Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.⁷³⁸ A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding.⁷³⁹ The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.⁷⁴⁰ In civil contexts, however, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.⁷⁴¹

Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country.⁷⁴² In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.”⁷⁴³ Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.⁷⁴⁴

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process.⁷⁴⁵ Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.⁷⁴⁶ Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,⁷⁴⁷ and may not require judicial review at all.⁷⁴⁸ Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.⁷⁴⁹ Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.⁷⁵⁰

The Requirements of Due Process.—Although due process tolerates variances in procedure “appropriate to the nature of the case,”⁷⁵¹ it is nonetheless possible to identify its core goals and requirements. First, “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”⁷⁵² Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.⁷⁵³ The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

(1) Notice. “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.”⁷⁵⁴ This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable followup measures” that may be available.⁷⁵⁵ In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.⁷⁵⁶ Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.⁷⁵⁷ Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.⁷⁵⁸

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”⁷⁵⁹ This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment . . . .”⁷⁶⁰ Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”⁷⁶¹

(3) Impartial Tribunal. Just as in criminal and quasi-criminal cases,⁷⁶² an impartial decisionmaker is an essential right in civil proceedings as well.⁷⁶³ “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”⁷⁶⁴ Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.⁷⁶⁵

There is, however, a “presumption of honesty and integrity in those serving as adjudicators,”⁷⁶⁶ so that the burden is on the objecting party to show a conﬂict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.⁷⁶⁷ The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them.⁷⁶⁸ Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In Caperton v. A. T. Massey Coal Co. , Inc., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.”⁷⁶⁹ The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.”⁷⁷⁰ In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’” there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’”⁷⁷¹ These circumstances include “where a judge had a financial interest in the outcome of a case” or “a conﬂict arising from his participation in an earlier proceeding.”⁷⁷² In such cases, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”⁷⁷³ In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.”⁷⁷⁴ This $3 million was more than the total amount spent by all other supporters of the justice and three times the amount spent by the justice’s own committee. The justice was elected, declined to recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate inﬂuence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”⁷⁷⁵

Subsequently, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death—had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.⁷⁷⁶ Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,”⁷⁷⁷ the Williams Court specifically held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”⁷⁷⁸ The Court based its holding, in part, on earlier cases which had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in Williams.⁷⁷⁹ It also reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,⁷⁸⁰ and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.”⁷⁸¹ As a remedy, the case was remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question did not cast the deciding vote, as the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.⁷⁸²

(4) Confrontation and Cross-Examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”⁷⁸³ Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” the individual’s right to show that it is untrue depends on the rights of confrontation and cross-examination. “This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”⁷⁸⁴

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”⁷⁸⁵ Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so.⁷⁸⁶ There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization.⁷⁸⁷

(6) Decision on the Record. Although this issue arises principally in the administrative law area,⁷⁸⁸ it applies generally. “[T]he decisionmaker’s conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker 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.”⁷⁸⁹

(7) Counsel. In Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.⁷⁹⁰ In the years since, the Court has struggled with whether civil litigants in court and persons before agencies who could not afford retained counsel should have counsel appointed and paid for, and the matter seems far from settled. The Court has established a presumption that an indigent does not have the right to appointed counsel unless his “physical liberty” is threatened.⁷⁹¹ Moreover, that an indigent may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court focuses on the circumstances in individual cases, and may hold that provision of counsel is not required if the state provides appropriate alternative safeguards.⁷⁹²

Though the calculus may vary, cases not involving detention also are determined on a casebycase basis using a balancing standard.⁷⁹³

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.⁷⁹⁴ In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.⁷⁹⁵ Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

The Procedure That Is Due ProcessThe Interests Protected: “Life, Liberty and Property”.— The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened.⁷⁹⁶ Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.⁷⁹⁷ In the 1960s, however, the Court began a rapid expansion of the “liberty” and “property” aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The “life” interest, on the other hand, although often important in criminal cases, has found little application in the civil context.

The Property Interest.—The expansion of the concept of “property rights” beyond its common law roots reﬂected a recognition by the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.⁷⁹⁸ In addition, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail.⁷⁹⁹ Furthermore, the continued possession of a driver’s license, which may be essential to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability.⁸⁰⁰

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts,⁸⁰¹ and with the decline of the “right-privilege” principle. This principle, discussed previously in the First Amendment context,⁸⁰² was pithily summarized by Justice Holmes in dismissing a suit by a policeman protesting being fired from his job: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”⁸⁰³ Under this theory, a finding that a litigant had no “vested property interest” in government employment,⁸⁰⁴ or that some form of public assistance was “only” a privilege,⁸⁰⁵ meant that no procedural due process was required before depriving a person of that interest.⁸⁰⁶ The reasoning was that, if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.

The conceptual underpinnings of this position, however, were always in conﬂict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the “unconstitutional conditions” doctrine, held that, “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”⁸⁰⁷ Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to be largely disregarded.⁸⁰⁸

Concurrently with the virtual demise of the “right-privilege” distinction, there arose the “entitlement” doctrine, under which the Court erected a barrier of procedural—but not substantive—protections⁸⁰⁹ against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and “natural rights.” Now, under a new “positivist” approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly,⁸¹⁰ in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pretermination evidentiary hearing at which an initial determination of the validity of the dispensing agency’s grounds for termination may be made. In order to reach this conclusion, the Court found that such benefits “are a matter of statutory entitlement for persons qualified to receive them.”⁸¹¹ Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due Process Clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate. “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”⁸¹² To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”⁸¹³

Consequently, in Board of Regents v. Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.⁸¹⁴ By contrast, in Perry v. Sindermann,⁸¹⁵ a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.⁸¹⁶ The “existing rules or understandings” were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.⁸¹⁷

The Court has also found “legitimate entitlements” in a variety of other situations besides employment. In Goss v. Lopez,⁸¹⁸ an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, the state was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days. “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.”⁸¹⁹ The Court is highly deferential, however, to school dismissal decisions based on academic grounds.⁸²⁰

The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,⁸²¹ the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a longstanding tradition of police discretion coexisting with apparently mandatory arrest statutes.⁸²² Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.⁸²³

In Arnett v. Kennedy,⁸²⁴ an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the employees. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,”⁸²⁵ the employee would have to “take the bitter with the sweet.”⁸²⁶ Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required.

But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt to formulate the issue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”⁸²⁷ Yet, in Bishop v. Wood,⁸²⁸ the Court accepted a district court’s finding that a policeman held his position “at will” despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez,⁸²⁹ Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day suspension.⁸³⁰

Subsequently, however, the Court held squarely that, because “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.” Indeed, any other conclusion would allow the state to destroy virtually any state-created property interest at will.⁸³¹ A striking application of this analysis is found in Logan v. Zimmerman Brush Co.,⁸³² in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court noted that various older cases had clearly established that causes of action were property, and, in any event, Logan’s claim was an entitlement grounded in state law and thus could only be removed “for cause.” This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction.⁸³³

The Liberty Interest.—With respect to liberty interests, the Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the Court has expanded the concept to include various other protected interests, some statutorily created and some not.⁸³⁴ Thus, in Ingraham v. Wright,⁸³⁵ the Court unanimously agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. “The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”⁸³⁶

The Court also appeared to have expanded the notion of “liberty” to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process.⁸³⁷ Thus, in Wisconsin v. Constantineau,⁸³⁸ the Court invalidated a statutory scheme in which persons could be labeled “excessive drinkers,” without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity.⁸³⁹

But, in Paul v. Davis,⁸⁴⁰ the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff’s photograph and name on a list of “active shoplifters” circulated to merchants without an opportunity for notice or hearing. But the Court held that “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interest by means of damage actions.”⁸⁴¹ Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial to “excessive drinkers” of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.

A number of liberty interest cases that involve statutorily created entitlements involve prisoner rights, and are dealt with more extensively in the section on criminal due process. However, they are worth noting here. In Meachum v. Fano,⁸⁴² the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the Due Process Clause liberty interest by itself was satisfied by the initial valid conviction, which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required.

In Vitek v. Jones,⁸⁴³ by contrast, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a finding, by a designated physician or psychologist, that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through fair procedures. Interestingly, however, the Vitek Court also held that the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the Due Process Clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation,⁸⁴⁴ a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.

But, with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of procedures.⁸⁴⁵ Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of discretion, and there must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found.⁸⁴⁶ In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the state creates an “atypical and significant hardship.”⁸⁴⁷

Proceedings in Which Procedural Due Process Need Not Be Observed.—Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,⁸⁴⁸ there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”⁸⁴⁹

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.⁸⁵⁰ On the other hand, if a regulation, sometimes denominated an “order,” is of limited application, that is, it affects an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action, becomes a matter of greater urgency and must be determined by evaluating the various factors discussed below.⁸⁵¹

One such factor is whether agency action is subject to later judicial scrutiny.⁸⁵² In one of the initial decisions construing the Due Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.⁸⁵³

In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. The fact that the execution was issued in the first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court, was seen as unobjectionable.⁸⁵⁴

It is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.⁸⁵⁵ With regard to the presentation of every available defense, however, the requirements of due process do not necessarily entail affording an opportunity to do so before entry of judgment. The person may be remitted to other actions initiated by him⁸⁵⁶ or an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity to be heard on the issue of liability, was not denied due process where the state practice provided the opportunity for such a hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.⁸⁵⁷ On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material was held to have been deprived of his rights without due process of law.⁸⁵⁸

What Process Is Due.—The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.⁸⁵⁹ The currently prevailing standard is that formulated in Mathews v. Eldridge,⁸⁶⁰ which concerned termination of Social Security benefits. “Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

The termination of welfare benefits in Goldberg v. Kelly,⁸⁶¹ which could have resulted in a “devastating” loss of food and shelter, had required a predeprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pretermination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.⁸⁶²

Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring predeprivation hearings. Newer cases, however, look to the interests of creditors as well. “The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”⁸⁶³

Thus, Sniadach v. Family Finance Corp.,⁸⁶⁴ which mandated predeprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.⁸⁶⁵ Fuentes v. Shevin,⁸⁶⁶ which struck down a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,⁸⁶⁷ so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.⁸⁶⁸ Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.⁸⁶⁹

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.⁸⁷⁰ Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.⁸⁷¹ In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.⁸⁷² In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.⁸⁷³

In Brock v. Roadway Express, Inc.,⁸⁷⁴ a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a “whistle-blower” employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee’s charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conﬂicting private interests to weigh in the equation: that of the employer “in controlling the makeup of its workforce” and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.⁸⁷⁵

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,⁸⁷⁶ a citizen paid a $134. 50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.⁸⁷⁷ That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction.⁸⁷⁸ The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,”⁸⁷⁹ concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.”⁸⁸⁰ Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;⁸⁸¹ (2) the burden of proving one’s innocence by “clear and convincing” evidence unacceptably risked erroneous deprivation of those funds;⁸⁸² and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.”⁸⁸³ As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.⁸⁸⁴

In another respect, the balancing standard of Mathews has resulted in states’ having wider ﬂexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.⁸⁸⁵ Thus, the Court, in passing on the inﬂiction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i. e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.⁸⁸⁶ The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.⁸⁸⁷

The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,⁸⁸⁸ and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is “the state system itself that destroys a complainant’s property interest.”⁸⁸⁹ Although the Court brieﬂy entertained the theory that a negligent (i. e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,⁸⁹⁰ the Court subsequently overruled this holding, stating that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”⁸⁹¹

In “rare and extraordinary situations,” where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.⁸⁹² Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,⁸⁹³ collection of governmental revenues,⁸⁹⁴ and the seizure of enemy property in wartime.⁸⁹⁵ Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the fivetofour decision is unclear.⁸⁹⁶ On the one hand, the Court was ambivalent about a right-privilege distinction;⁸⁹⁷ on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the government’s interest in conducting a high-security program.⁸⁹⁸

JurisdictionGenerally.—Jurisdiction may be defined as the power of a government to create legal interests, and the Court has long held that the Due Process Clause limits the abilities of states to exercise this power.⁸⁹⁹ In the famous case of Pennoyer v. Neff,⁹⁰⁰ the Court enunciated two principles of jurisdiction respecting the states in a federal system⁹⁰¹ : first, “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” and second, “no State can exercise direct jurisdiction and authority over persons or property without its territory.”⁹⁰² Over a long period of time, however, the mobility of American society and the increasing complexity of commerce led to attenuation of the second principle of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon the nature and the quality of contacts that individuals and corporations have with a state.⁹⁰³ This “minimum contacts” test, consequently, permits state courts to obtain power over outofstate defendants.

In Personam Proceedings Against Individuals.—How jurisdiction is determined depends on the nature of the suit being brought. If a dispute is directed against a person, not property, the proceedings are considered in personam, and jurisdiction must be established over the defendant’s person in order to render an effective decree.⁹⁰⁴ Generally, presence within the state is sufficient to create personal jurisdiction over an individual, if process is served.⁹⁰⁵ In the case of a resident who is absent from the state, domicile alone is deemed to be sufficient to keep him within reach of the state courts for purposes of a personal judgment, and process can be obtained by means of appropriate, substituted service or by actual personal service on the resident outside the state.⁹⁰⁶ However, if the defendant, although technically domiciled there, has left the state with no intention to return, service by publication, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate, because it is not reasonably calculated to give actual notice of the proceedings and opportunity to be heard.⁹⁰⁷

With respect to a nonresident, it is clearly established that no person can be deprived of property rights by a decree in a case in which he neither appeared nor was served or effectively made a party.⁹⁰⁸ The early cases held that the process of a court of one state could not run into another and summon a resident of that state to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment.⁹⁰⁹ This rule, however, has been attenuated in a series of steps.

Consent has always been sufficient to create jurisdiction, even in the absence of any other connection between the litigation and the forum. For example, the appearance of the defendant for any purpose other than to challenge the jurisdiction of the court was deemed a voluntary submission to the court’s power,⁹¹⁰ and even a special appearance to deny jurisdiction might be treated as consensual submission to the court.⁹¹¹ The concept of “constructive consent” was then seized upon as a basis for obtaining jurisdiction. For instance, with the advent of the automobile, States were permitted to engage in the fiction that the use of their highways was conditioned upon the consent of drivers to be sued in state courts for accidents or other transactions arising out of such use. Thus, a state could designate a state official as a proper person to receive service of process in such litigation, and establishing jurisdiction required only that the official receiving notice communicate it to the person sued.⁹¹²

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really the state’s power to regulate acts done in the state that were dangerous to life or property.⁹¹³ Because the state did not really have the ability to prevent nonresidents from doing business in their state,⁹¹⁴ this extension was necessary in order to permit states to assume jurisdiction over individuals “doing business” within the state. Thus, the Court soon recognized that “doing business” within a state was itself a sufficient basis for jurisdiction over a nonresident individual, at least where the business done was exceptional enough to create a strong state interest in regulation, and service could be effectuated within the state on an agent appointed to carry out the business.⁹¹⁵

The culmination of this trend, established in International Shoe Co. v. Washington,⁹¹⁶ was the requirement that there be “minimum contacts” with the state in question in order to establish jurisdiction. The outer limit of this test is illustrated by Kulko v. Superior Court,⁹¹⁷ in which the Court held that California could not obtain personal jurisdiction over a New York resident whose sole relevant contact with the state was to send his daughter to live with her mother in California.⁹¹⁸ The argument was made that the father had “caused an effect” in the state by availing himself of the benefits and protections of California’s laws and by deriving an economic benefit in the lessened expense of maintaining the daughter in New York. The Court explained that, “[l]ike any standard that requires a determination of ‘reasonableness,’ the ‘minimum contacts’ test . . . is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.”⁹¹⁹ Although the Court noted that the “effects” test had been accepted as a test of contacts when wrongful activity outside a state causes injury within the state or when commercial activity affects state residents, the Court found that these factors were not present in this case, and any economic benefit to Kulko was derived in New York and not in California.⁹²⁰ As with many such cases, the decision was narrowly limited to its facts and does little to clarify the standards applicable to state jurisdiction over nonresidents.

Walden v. Fiore further articulated what “minimum contacts” are necessary to create jurisdiction as a result of the relationship between the defendant, the forum, and the litigation.⁹²¹ In Walden, the plaintiffs, who were residents of Nevada, sued a law enforcement officer in federal court in Nevada as a result of an incident that occurred in an airport in Atlanta as the plaintiffs were attempting to board a connecting ﬂight from Puerto Rico to Las Vegas. The Court held that the court in Nevada lacked jurisdiction because of insufficient contacts between the officer and the state relative to the alleged harm, as no part of the officer’s conduct occurred in Nevada. In so holding, the Court emphasized that the minimum contacts inquiry should not focus on the resulting injury to the plaintiffs; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.⁹²²

Suing Out-of-State (Foreign) Corporations.—A curious aspect of American law is that a corporation has no legal existence outside the boundaries of the state chartering it.⁹²³ Thus, the basis for state court jurisdiction over an outofstate (“foreign”) corporation has been even more uncertain than that with respect to individuals. Before International Shoe Co. v. Washington,⁹²⁴ it was asserted that, because a corporation could not carry on business in a state without the state’s permission, the state could condition its permission upon the corporation’s consent to submit to the jurisdiction of the state’s courts, either by appointment of someone to receive process or in the absence of such designation, by accepting service upon corporate agents authorized to operate within the state.⁹²⁵ Further, by doing business in a state, the corporation was deemed to be present there and thus subject to service of process and suit.⁹²⁶ This theoretical corporate presence conﬂicted with the idea of corporations having no existence outside their state of incorporation, but it was nonetheless accepted that a corporation “doing business” in a state to a sufficient degree was “present” for service of process upon its agents in the state who carried out that business.⁹²⁷

Presence alone, however, does not expose a corporation to all manner of suits through the exercise of general jurisdiction. Only corporations, whose “continuous and systematic” affiliations with a forum make them “essentially at home” there, are broadly amenable to suit.⁹²⁸ While the paradigmatic examples of where a corporate defendant is “at home” are the corporation’s place of incorporation and principal place of business,⁹²⁹ the Court has recognized that in “exceptional cases” general jurisdiction can be exercised by a court located where the corporate defendant’s operations are “so substantial” as to “render the corporation at home in that state.”⁹³⁰ Nonetheless, insubstantial instate business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.⁹³¹ Without the protection of such a rule, foreign corporations would be exposed to the manifest hardship and inconvenience of defending, in any state in which they happened to be carrying on business, suits for torts wherever committed and claims on contracts wherever made.⁹³² And if the corporation stopped doing business in the forum state before suit against it was commenced, it might well escape jurisdiction altogether.⁹³³ In early cases, the issue of the degree of activity and, in particular, the degree of solicitation that was necessary to constitute doing business by a foreign corporation, was much disputed and led to very particularistic holdings.⁹³⁴ In the absence of enough activity to constitute doing business, the mere presence of an agent, officer, or stockholder, who could be served, within a state’s territorial limits was not sufficient to enable the state to exercise jurisdiction over the foreign corporation.⁹³⁵

The touchstone in jurisdiction cases was recast by International Shoe Co. v. Washington and its “minimum contacts” analysis.⁹³⁶ International Shoe, an outofstate corporation, had not been issued a license to do business in the State of Washington, but it systematically and continuously employed a sales force of Washington residents to solicit therein and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such salesmen. The Court deemed a notice of assessment served personally upon one of the local sales solicitors, and a copy of the assessment sent by registered mail to the corporation’s principal office in Missouri, sufficient to apprise the corporation of the proceeding.

To reach this conclusion, the Court not only overturned prior holdings that mere solicitation of business does not constitute a sufficient contact to subject a foreign corporation to a state’s jurisdiction,⁹³⁷ but also rejected the “presence” test as begging the question to be decided. “The terms ‘present’ or ‘presence,’” according to Chief Justice Stone, “are used merely to symbolize those activities of the corporation’s agent within the State which courts will deem to be sufficient to satisfy the demands of due process. . . . Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system . . . , to require the corporation to defend the particular suit which is brought there; [and] . . . that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’. . . . An ‘estimate of the inconveniences’ which would result to the corporation from a trial away from its ‘home’ or principal place of business is relevant in this connection.”⁹³⁸ As to the scope of application to be accorded this “fair play and substantial justice” doctrine, the Court concluded that “so far as . . . [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”⁹³⁹

Extending this logic, a majority of the Court ruled that an outofstate association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the state could institute enforcement proceedings under its Blue Sky Law by forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever.⁹⁴⁰ The Due Process Clause was declared not to “forbid a State to protect its citizens from such injustice” of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.⁹⁴¹

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts with California residents to suit in California courts, and which had authorized the petitioner to serve a Texas insurer by registered mail only.⁹⁴² The contract between the company and the insured specified that Austin, Texas, was the place of “making” and the place where liability should be deemed to arise. The company mailed premium notices to the insured in California, and he mailed his premium payments to the company in Texas. Acknowledging that the connection of the company with California was tenuous—it had no office or agents in the state and no evidence had been presented that it had solicited anyone other than the insured for business— the Court sustained jurisdiction on the basis that the suit was on a contract which had a substantial connection with California. “The contract was delivered in California, the premiums were mailed there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.”⁹⁴³

In making this decision, the Court noted that “[l]ooking back over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.”⁹⁴⁴ However, in Hanson v. Denckla, decided during the same Term, the Court found in personam jurisdiction lacking for the first time since International Shoe Co. v. Washington, pronouncing firm due process limitations. In Hanson,⁹⁴⁵ the issue was whether a Florida court considering a contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The will had been entered into and probated in Florida, the claimants were resident in Florida and had been personally served, but the trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the states to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by states, saying that “it would be a mistake to assume that th[e] trend [to expand the reach of state courts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.”⁹⁴⁶

The Court recognized in Hanson that Florida law was the most appropriate law to be applied in determining the validity of the will and that the corporate defendants might be little inconvenienced by having to appear in Florida courts, but it denied that either circumstance satisfied the Due Process Clause. The Court noted that due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that “[these restrictions] are consequences of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has the ‘minimum contacts’ with that State that are a prerequisite to its exercise of power over him.” The only contacts the corporate defendants had in Florida consisted of a relationship with the individual defendants. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. . . . The settlor’s execution in Florida of her power of appointment cannot remedy the absence of such an act in this case.”⁹⁴⁷

The Court continued to apply International Shoe principles in diverse situations. Thus, circulation of a magazine in a state was an adequate basis for that state to exercise jurisdiction over an outofstate corporate magazine publisher in a libel action. The fact that the plaintiff did not have “minimum contacts” with the forum state was not dispositive since the relevant inquiry is the relations among the defendant, the forum, and the litigation.⁹⁴⁸ Or, damage done to the plaintiff’s reputation in his home state caused by circulation of a defamatory magazine article there may justify assertion of jurisdiction over the out-of-state authors of such article, despite the lack of minimum contact between the authors (as opposed to the publishers) and the state.⁹⁴⁹ Further, though there is no per se rule that a contract with an out-of-state party automatically establishes jurisdiction to enforce the contract in the other party’s forum, a franchisee who has entered into a franchise contract with an out-of-state corporation may be subject to suit in the corporation’s home state where the overall circumstances (contract terms themselves, course of dealings) demonstrate a deliberate reaching out to establish contacts with the franchisor in the franchisor’s home state.⁹⁵⁰

The Court has continued to wrestle over when a state may adjudicate a products liability claim for an injury occurring within it, at times finding the defendant’s contacts with the place of injury to be too attenuated to support its having to mount a defense there. In World-Wide Volkswagen Corp. v. Woodson,⁹⁵¹ the Court applied its “minimum contacts” test to preclude the assertion of jurisdiction over two foreign corporations that did no business in the forum state. Plaintiffs had sustained personal injuries in Oklahoma in an accident involving an alleged defect in their automobile. The car had been purchased the previous year in New York, the plaintiffs were New York residents at time of purchase, and the accident had occurred while they were driving through Oklahoma on their way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that did no business in Oklahoma. The Court found no circumstances justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (1) carried on no activity in Oklahoma, (2) closed no sales and performed no services there, (3) availed themselves of none of the benefits of the state’s laws, (4) solicited no business there either through salespersons or through advertising reasonably calculated to reach the state, and (5) sold no cars to Oklahoma residents or indirectly served or sought to serve the Oklahoma market. Although it might have been foreseeable that the automobile would travel to Oklahoma, foreseeability was held to be relevant only insofar as “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”⁹⁵² The Court in World-Wide Volkswagen Corp. contrasted the facts of the case with the instance of a corporation “deliver[ing] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”⁹⁵³

In Asahi Metal Industry Co. v. Superior Court,⁹⁵⁴ the Court addressed more closely how jurisdiction ﬂows with products downstream. The Court identified two standards for limiting jurisdiction even as products proceed to foreseeable destinations. The more general standard harked back to the fair play and substantial justice doctrine of International Shoe and requires balancing the respective interests of the parties, the prospective forum state, and alternative fora. All the Justices agreed with the legitimacy of this test in assessing due process limits on jurisdiction.⁹⁵⁵ However, four Justices would also apply a more exacting test: A defendant who placed a product in the stream of commerce knowing that the product might eventually be sold in a state will be subject to jurisdiction there only if the defendant also had purposefully acted to avail itself of the state’s market. According to Justice O’Connor, who wrote the opinion espousing this test, a defendant subjected itself to jurisdiction by targeting or serving customers in a state through, for example, direct advertising, marketing through a local sales agent, or establishing channels for providing regular advice to local customers. Action, not expectation, is key.⁹⁵⁶ In Asahi, the state was found to lack jurisdiction under both tests cited.

Doctrinal differences on the due process touchstones in streamofcommerce cases became more critical to the outcome in J. McIntyre Machinery, Ltd. v. Nicastro.⁹⁵⁷ Justice Kennedy, writing for a four-Justice plurality, asserted that it is a defendant’s purposeful availment of the forum state that makes jurisdiction consistent with traditional notions of fair play and substantial justice. The question is not so much the fairness of a state reaching out to bring a foreign defendant before its courts as it is a matter of a foreign defendant having acted within a state so as to bring itself within the state’s limited authority. Thus, a British machinery manufacturer who targeted the U. S. market generally through engaging a nationwide distributor and attending trade shows, among other means, could not be sued in New Jersey for an industrial accident that occurred in the state. Even though at least one of its machines (and perhaps as many as four) were sold to New Jersey concerns, the defendant had not purposefully targeted the New Jersey market through, for example, establishing an office, advertising, or sending employees.⁹⁵⁸ Concurring with the plurality, Justice Breyer emphasized the outcome lay in stream-of-commerce precedents that held isolated or infrequent sales could not support jurisdiction. At the same time, Justice Breyer cautioned against adoption of the plurality’s strict active availment of the forum rule, especially because the Court had yet to consider due process requirements in the context of evolving business models, modern e-commerce in particular.⁹⁵⁹

Nonetheless, in order for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant’s contacts with the forum,⁹⁶⁰ and when there is “no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”⁹⁶¹ As a result, the Court, in Bristol-Myers Squibb Co. v. Superior Court, concluded that the California Supreme Court erred in employing a “relaxed” approach to personal jurisdiction by holding that a state court could exercise specific jurisdiction over a corporate defendant who was being sued by non-state residents for out-of-state activities solely because the defendant had “extensive forum contacts” unrelated to the claims in question.⁹⁶² Concluding that California’s approach was a “loose and spurious form of general jurisdiction,”⁹⁶³ the Court held that without a “connection between the forum and the specific claims at issue,” California courts lacked jurisdiction over the corporate defendant.⁹⁶⁴

Actions In Rem: Proceeding Against Property.—In an in rem action, which is an action brought directly against a property interest, a state can validly proceed to settle controversies with regard to rights or claims against tangible or intangible property within its borders, notwithstanding that jurisdiction over the defendant was never established.⁹⁶⁵ Unlike jurisdiction in personam, a judgment entered by a court with in rem jurisdiction does not bind the defendant personally but determines the title to or status of the only property in question.⁹⁶⁶ Proceedings brought to register title to land,⁹⁶⁷ to condemn⁹⁶⁸ or confiscate⁹⁶⁹ real or personal property, or to administer a decedent’s estate⁹⁷⁰ are typical in rem actions. Due process is satisfied by seizure of the property (the “res”) and notice to all who have or may have interests therein.⁹⁷¹ Under prior case law, a court could acquire in rem jurisdiction over nonresidents by mere constructive service of process,⁹⁷² under the theory that property was always in possession of its owners and that seizure would afford them notice, because they would keep themselves apprized of the state of their property. It was held, however, that this fiction did not satisfy the requirements of due process, and, whatever the nature of the proceeding, that notice must be given in a manner that actually notifies the person being sought or that has a reasonable certainty of resulting in such notice.⁹⁷³

Although the Court has now held “that all assertions of state-court jurisdiction must be evaluated according to the [‘minimum contacts’] standards set forth in International Shoe Co. v. Washington,”⁹⁷⁴ it does not appear that this will appreciably change the result for in rem jurisdiction over property. “[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State.”⁹⁷⁵ Thus, for “true” in rem actions, the old results are likely to still prevail.

Quasi in Rem: Attachment Proceedings.—If a defendant is neither domiciled nor present in a state, he cannot be served personally, and any judgment in money obtained against him would be unenforceable. This does not, however, prevent attachment of a defendant’s property within the state. The practice of allowing a state to attach a non-resident’s real and personal property situated within its borders to satisfy a debt or other claim by one of its citizens goes back to colonial times. Attachment is considered a form of in rem proceeding sometimes called “quasi in rem,” and under Pennoyer v. Neff⁹⁷⁶ an attachment could be implemented by obtaining a writ against the local property of the defendant and giving notice by publication.⁹⁷⁷ The judgement was then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no further.⁹⁷⁸

This form of proceeding raised many questions. Of course, there were always instances in which it was fair to subject a person to suit on his property located in the forum state, such as where the property was related to the matter sued over.⁹⁷⁹ In others, the question was more disputed, as in the famous New York Court of Appeals case of Seider v. Roth,⁹⁸⁰ in which the property subject to attachment was the contractual obligation of the defendant’s insurance company to defend and pay the judgment. But, in Harris v. Balk,⁹⁸¹ the facts of the case and the establishment of jurisdiction through quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who was owed a debt by Balk, a North Carolina resident. The Marylander ascertained, apparently adventitiously, that Harris, a North Carolina resident who owed Balk an amount of money, was passing through Maryland, and the Marylander attached this debt. Balk had no notice of the action and a default judgment was entered, after which Harris paid over the judgment to the Marylander. When Balk later sued Harris in North Carolina to recover on his debt, Harris argued that he had been relieved of any further obligation by satisfying the judgment in Maryland, and the Supreme Court sustained his defense, ruling that jurisdiction had been properly obtained and the Maryland judgment was thus valid.⁹⁸²

subject⁹⁸³ in which the Court rejected the Delaware state court’s jurisdiction, holding that the “minimum contacts” test of International Shoe applied to all in rem and quasi in rem actions. The case involved a Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching their “property” within Delaware, the property here consisting of shares of corporate stock and options to stock in the defendant corporation. The stock was considered to be in Delaware because that was the state of incorporation, but none of the certificates representing the seized stocks were physically present in Delaware. The reason for applying the same test as is applied in in personam cases, the Court said, “is simple and straightforward. It is premised on recognition that ‘[t]he phrase ‘judicial jurisdiction’ over a thing,’ is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.”⁹⁸⁴ Thus, “[t]he recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising ‘jurisdiction over the interests of persons in a thing.’”⁹⁸⁵

A further tightening of jurisdictional standards occurred in Rush v. Savchuk.⁹⁸⁶ The plaintiff was injured in a one-car accident in Indiana while a passenger in a car driven by defendant. Plaintiff later moved to Minnesota and sued defendant, still resident in Indiana, in state court in Minnesota. There were no contacts between the defendant and Minnesota, but defendant’s insurance company did business there and plaintiff garnished the insurance contract, signed in Indiana, under which the company was obligated to defend defendant in litigation and indemnify him to the extent of the policy limits. The Court refused to permit jurisdiction to be grounded on the contract; the contacts justifying jurisdiction must be those of the defendant engaging in purposeful activity related to the forum.⁹⁸⁷ Rush thus resulted in the demise of the controversial Seider v. Roth doctrine, which lower courts had struggled to save after Shaffer v. Heitner.⁹⁸⁸

Actions in Rem: Estates, Trusts, Corporations.—Generally, probate will occur where the decedent was domiciled, and, as a probate judgment is considered in rem, a determination as to assets in that state will be determinative as to all interested persons.⁹⁸⁹ Insofar as the probate affects real or personal property beyond the state’s boundaries, however, the judgment is in personam and can bind only parties thereto or their privies.⁹⁹⁰ Thus, the Full Faith and Credit Clause would not prevent an out-of-state court in the state where the property is located from reconsidering the first court’s finding of domicile, which could affect the ultimate disposition of the property.⁹⁹¹

The difficulty of characterizing the existence of the res in a particular jurisdiction is illustrated by the in rem aspects of Hanson v. Denckla.⁹⁹² As discussed earlier,⁹⁹³ the decedent created a trust with a Delaware corporation as trustee,⁹⁹⁴ and the Florida courts had attempted to assert both in personam and in rem jurisdiction over the Delaware corporation. Asserting the old theory that a court’s in rem jurisdiction “is limited by the extent of its power and by the coordinate authority of sister States,”⁹⁹⁵ i. e. , whether the court has jurisdiction over the thing, the Court thought it clear that the trust assets that were the subject of the suit were located in Delaware and thus the Florida courts had no in rem jurisdiction. The Court did not expressly consider whether the International Shoe test should apply to such in rem jurisdiction, as it has now held it generally must, but it did brieﬂy consider whether Florida’s interests arising from its authority to probate and construe the domiciliary’s will, under which the foreign assets might pass, were a sufficient basis of in rem jurisdiction and decided they were not.⁹⁹⁶ The effect of International Shoe in this area is still to be discerned.

The reasoning of the Pennoyer⁹⁹⁷ rule, that seizure of property and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally served and all claimants who were unknown or nonresident were given constructive notice by publication, judgments in these proceedings were held binding on all.⁹⁹⁸ But, in Mullane v. Central Hanover Bank & Trust Co.,⁹⁹⁹ the Court, while declining to characterize the proceeding as in rem or in personam, held that a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries could not obtain a judicial settlement of accounts if the only notice was publication in a local paper. Although such notice by publication was sufficient as to beneficiaries whose interests or addresses were unknown to the bank, the Court held that it was feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice to the addresses on record with the bank.¹⁰⁰⁰

Notice: Service of Process.—Before a state may legitimately exercise control over persons and property, the state’s jurisdiction must be perfected by an appropriate service of process that is effective to notify all parties of proceedings that may affect their rights.¹⁰⁰¹ Personal service guarantees actual notice of the pendency of a legal action, and has traditionally been deemed necessary in actions styled in personam.¹⁰⁰² But “certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance,” the Court in some situations has allowed the use of procedures that “do not carry with them the same certainty of actual notice that inheres in personal service.”¹⁰⁰³ But, whether the action be in rem or in personam, there is a constitutional minimum; due process requires “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.”¹⁰⁰⁴

The use of mail to convey notice, for instance, has become quite established,¹⁰⁰⁵ especially for assertion of in personam jurisdiction extraterritorially upon individuals and corporations having “minimum contacts” with a forum state, where various “long-arm” statutes authorize notice by mail.¹⁰⁰⁶ Or, in a class action, due process is satisfied by mail notification of out-of-state class members, giving such members the opportunity to “opt out” but with no requirement that inclusion in the class be contingent upon affirmative response.¹⁰⁰⁷ Other service devices and substitutions have been pursued and show some promise of further loosening of the concept of territoriality even while complying with minimum due process standards of notice.¹⁰⁰⁸

Power of the States to Regulate ProcedureGenerally.—As long as a party has been given sufficient notice and an opportunity to defend his interest, the Due Process Clause of the Fourteenth Amendment does not generally mandate the particular forms of procedure to be used in state courts.¹⁰⁰⁹ The states may regulate the manner in which rights may be enforced and wrongs remedied,¹⁰¹⁰ and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.¹⁰¹¹ Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth Amendment is negative rather than affirmative¹⁰¹² and in no way obligates the states to adopt specific measures of reform.¹⁰¹³

Commencement of Actions.—A state may impose certain conditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.¹⁰¹⁴ But, foreclosure of all access to the courts, through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. Thus, where a state has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to those persons unable to pay its fees.¹⁰¹⁵

Older cases, which have not been questioned by more recent ones, held that a state, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff’s attorney of record.¹⁰¹⁶ For similar reasons, a requirement of the performance of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers, while allowing other evidence, was not deemed arbitrary or unreasonable.¹⁰¹⁷

Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.¹⁰¹⁸

Defenses.—Just as a state may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment.¹⁰¹⁹ A state may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.¹⁰²⁰ A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents. No person has a vested right in such defenses.¹⁰²¹ Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend.¹⁰²²

Costs, Damages, and Penalties.—What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.¹⁰²³ Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.¹⁰²⁴ Congress may, however, severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal.¹⁰²⁵

Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.¹⁰²⁶ Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages.¹⁰²⁷

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.¹⁰²⁸ On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.¹⁰²⁹

To deter careless destruction of human life, a state may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees,¹⁰³⁰ and may also allow punitive damages for fraud perpetrated by employees.¹⁰³¹ Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.¹⁰³² The Court has indicated, however, that, although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,”¹⁰³³ a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.”¹⁰³⁴ These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.¹⁰³⁵ In addition, the “Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inﬂicts upon nonparties . . . .”¹⁰³⁶

Statutes of Limitation.—A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.¹⁰³⁷

Thus, where a receiver for property is appointed 13 years after the disappearance of the owner and notice is made by publication, it is not a violation of due process to bar actions relative to that property after an interval of only one year after such appointment.¹⁰³⁸ When a state, by law, suddenly prohibits all actions to contest tax deeds which have been of record for two years unless they are brought within six months after its passage, no unconstitutional deprivation is effected.¹⁰³⁹ No less valid is a statute which provides that when a person has been in possession of wild lands under a recorded deed continuously for 20 years and had paid taxes thereon during the same, and the former owner in that interval pays nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.¹⁰⁴⁰ Similarly, an amendment to a workmen’s compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.¹⁰⁴¹

Moreover, a state may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. Thus, a repeal or extension of a statute of limitations affects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. “A right to defeat a just debt by the statute of limitation . . . [is not] a vested right,” such as is protected by the Constitution. Accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,¹⁰⁴² or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,¹⁰⁴³ or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a state-administered fund.¹⁰⁴⁴

However, for suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.¹⁰⁴⁵ Also unconstitutional is the application of a statute of limitation to extend a period that parties to a contract have agreed should limit their right to remedies under the contract. “When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates . . . [said] agreement and directs enforcement of the contract after . . . [the agreed] time has expired” unconstitutionally imposes a burden in excess of that contracted.¹⁰⁴⁶

Burden of Proof and Presumptions.—It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.¹⁰⁴⁷ Nonetheless, the Due Process Clause does prevent the deprivation of liberty or property upon application of a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’”¹⁰⁴⁸

Applying the formula it has worked out for determining what process is due in a particular situation,¹⁰⁴⁹ the Court has held that a standard at least as stringent as clear and convincing evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.¹⁰⁵⁰ Similarly, because the interest of parents in retaining custody of their children is fundamental, the state may not terminate parental rights through reliance on a standard of preponderance of the evidence—the proof necessary to award money damages in an ordinary civil action— but must prove that the parents are unfit by clear and convincing evidence.¹⁰⁵¹ Further, unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.¹⁰⁵²

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat may not take the place of fact in the determination of issues involving life, liberty, or property, however, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is void.¹⁰⁵³ On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.¹⁰⁵⁴

For a brief period, the Court used what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment based on presumed characteristics based on the existence of another characteristic.¹⁰⁵⁵ Thus, in Stanley v. Illinois,¹⁰⁵⁶ the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.¹⁰⁵⁷

Major controversy developed over the application of “irrebuttable presumption doctrine” in benefits cases. Thus, although a state may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The Due Process Clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.¹⁰⁵⁸

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.¹⁰⁵⁹ The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the Equal Protection Clause or to the Due Process Clause in judging the validity of certain classifications,¹⁰⁶⁰ and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Use of the doctrine was curbed if not halted, however, in Weinberger v. Salfi,¹⁰⁶¹ in which the Court upheld the validity of a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse. Purporting to approve but to distinguish the prior cases in the line,¹⁰⁶² the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.¹⁰⁶³ Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would, said the Court, “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”¹⁰⁶⁴ Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications (in the equal protection sense of those expressions)¹⁰⁶⁵ or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court’s docket.¹⁰⁶⁶

Trials and Appeals.—Trial by jury in civil trials, unlike the case in criminal trials, has not been deemed essential to due process, and the Fourteenth Amendment has not been held to restrain the states in retaining or abolishing civil juries.¹⁰⁶⁷ Thus, abolition of juries in proceedings to enforce liens,¹⁰⁶⁸ mandamus¹⁰⁶⁹ and quo warranto¹⁰⁷⁰ actions, and in eminent domain¹⁰⁷¹ and equity¹⁰⁷² proceedings has been approved. states are also free to adopt innovations respecting selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of unanimity,¹⁰⁷³ and petit juries containing eight rather than the conventional number of twelve members may be established.¹⁰⁷⁴

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.¹⁰⁷⁵ But if an appeal is afforded, the state must not so structure it as to arbitrarily deny to some persons the right or privilege available to others.¹⁰⁷⁶

PROCEDURAL DUE PROCESS—CRIMINAL Generally: The Principle of Fundamental FairnessThe Court has held that practically all the criminal procedural guarantees of the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth Amendments—are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law under the Fourteenth Amendment.¹⁰⁷⁷ In addition, the Court has held that the Due Process Clause protects against practices and policies that violate precepts of fundamental fairness,¹⁰⁷⁸ even if they do not violate specific guarantees of the Bill of Rights.¹⁰⁷⁹ The standard query in such cases is whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”¹⁰⁸⁰

This inquiry contains a historical component, as “recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. . . . [Therefore, the limitations imposed by the Court on the states are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the context of the criminal processes maintained by the American States.”¹⁰⁸¹

The Elements of Due ProcessInitiation of the Prosecution.—Indictment by a grand jury is not a requirement of due process; a state may proceed instead by information.¹⁰⁸² Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense charged against him and for which he is to be tried,¹⁰⁸³ even aside from the notice requirements of the Sixth Amendment.¹⁰⁸⁴ Where, of course, a grand jury is used, it must be fairly constituted and free from prejudicial inﬂuences.¹⁰⁸⁵

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.—Criminal statutes that lack sufficient definiteness or specificity are commonly held “void for vagueness.”¹⁰⁸⁶ Such legislation “may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”¹⁰⁸⁷ “Men of common intelligence cannot be required to guess at the meaning of [an] enactment.”¹⁰⁸⁸ In other situations, a statute may be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement. In this vein, the Court has invalidated two kinds of laws as “void for vagueness”: (1) laws that define criminal offenses; and (2) laws that fix the permissible sentences for criminal offenses.¹⁰⁸⁹ With respect to laws that define criminal offenses, the Court has required that a penal statute provide the definition of the offense with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”¹⁰⁹⁰

For instance, the Court voided for vagueness a criminal statute providing that a person was a “gangster” and subject to fine or imprisonment if he was without lawful employment, had been either convicted at least three times for disorderly conduct or had been convicted of any other crime, and was “known to be a member of a gang of two or more persons.” The Court observed that neither common law nor the statute gave the words “gang” or “gangster” definite meaning, that the enforcing agencies and courts were free to construe the terms broadly or narrowly, and that the phrase “known to be a member” was ambiguous. The statute was held void, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the indictment, that prescribed the rules to govern conduct.¹⁰⁹¹

A statute may be so vague or so threatening to constitutionally protected activity that it can be pronounced wholly unconstitutional; in other words, “unconstitutional on its face.”¹⁰⁹² Thus, for instance, a unanimous Court in Papachristou v. City of Jacksonville¹⁰⁹³ struck down as invalid on its face a vagrancy ordinance that punished “dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children . . . .”¹⁰⁹⁴ The ordinance was found to be facially invalid, according to Justice Douglas for the Court, because it did not give fair notice, it did not require specific intent to commit an unlawful act, it permitted and encouraged arbitrary and erratic arrests and convictions, it committed too much discretion to policemen, and it criminalized activities that by modern standards are normally innocent.¹⁰⁹⁵

In FCC v. Fox, 567 U. S. ___, No. 10–1293, slip op. (2012) the Court held that the Federal Communiations Commission (FCC) had violated the Fifth Amendment due process rights of Fox Television and ABC, Inc. , because the FCC had not given fair notice that broadcasting isolated instances of expletives or brief nudity could lead to punishment. 18 U. S. C. § 1464 bans the broadcast of “any obscene, indecent, or profane language”, but the FCC had a long-standing policy that it would not consider “ﬂeeting” instances of indecency to be actionable, and had confirmed such a policy by issuance of an industry guidance. The policy was not announced until after the instances at issues in this case (two concerned isolated utterances of expletives during two live broadcasts aired by Fox Television, and a brief exposure of the nude buttocks of an adult female character by ABC). The Commission policy in place at the time of the broadcasts, therefore, gave the broadcasters no notice that a ﬂeeting instance of indecency could be actionable as indecent.

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the Court.¹⁰⁹⁶ For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional only as applied.¹⁰⁹⁷ Thus, in Palmer v. City of Euclid,¹⁰⁹⁸ an ordinance punishing “suspicious persons” defined as “[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself” was found void only as applied to a particular defendant. In Palmer, the Court found that the defendant, having dropped off a passenger and begun talking into a two-way radio, was engaging in conduct which could not reasonably be anticipated as fitting within the “without any visible or lawful business” portion of the ordinance’s definition.

Loitering statutes that are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they leave a police officer absolute discretion to give such orders.¹⁰⁹⁹ Thus, a Chicago ordinance that required police to disperse all persons in the company of “criminal street gang members” while in a public place with “no apparent purpose,” failed to meet the “requirement that a legislature establish minimal guidelines to govern law enforcement.”¹¹⁰⁰ The Court noted that “no apparent purpose” is inherently subjective because its application depends on whether some purpose is “apparent” to the officer, who would presumably have the discretion to ignore such apparent purposes as engaging in idle conversation or enjoying the evening air.¹¹⁰¹ On the other hand, where such a statute additionally required a finding that the defendant was intent on causing inconvenience, annoyance, or alarm, it was upheld against facial challenge, at least as applied to a defendant who was interfering with the ticketing of a car by the police.¹¹⁰²

Statutes with vague standards may nonetheless be upheld if the text of statute is interpreted by a court with sufficient clarity.¹¹⁰³ Thus, the civil commitment of persons of “such conditions of emotional instability . . . as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons” was upheld by the Court, based on a state court’s construction of the statute as only applying to persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inﬂict injury. The underlying conditions—habitual course of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others—were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal proceedings.¹¹⁰⁴

Conceptually related to the problem of definiteness in criminal statutes is the problem of notice. Ordinarily, it can be said that ignorance of the law affords no excuse, or, in other instances, that the nature of the subject matter or conduct may be sufficient to alert one that there are laws which must be observed.¹¹⁰⁵ On occasion the Court has even approved otherwise vague statutes because the statute forbade only “willful” violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct.¹¹⁰⁶ Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice.¹¹⁰⁷

The question of notice has also arisen in the context of “judge-made” law. Although the Ex Post Facto Clause forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a “year and a day” in order for homicide charges to be brought in Rogers v. Tennessee,¹¹⁰⁸ the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, the new “law” could not be applied retrospectively. The majority held, however, that only those holdings which were “unexpected and indefensible by reference to the law which had been express prior to the conduct in issue”¹¹⁰⁹ could not be applied retroactively. The relatively archaic nature of “year and a day rule”, its abandonment by most jurisdictions, and its inapplicability to modern times were all cited as reasons that the defendant had fair warning of the possible abrogation of the common law rule.

With regard to statutes that fix criminal sentences,¹¹¹⁰ the Court has explained that the law must specify the range of available sentences with “sufficient clarity.”¹¹¹¹ For example, in Johnson v. United States, after years of litigation on the meaning and scope of the “residual clause” of the Armed Career Criminal Act of 1984 (ACCA),¹¹¹² the Court concluded that the clause in question was void for vagueness.¹¹¹³ In relevant part, the ACCA imposes an increased prison term upon a felon who is in possession of a firearm, if that felon has previously been convicted for a “violent felony,” a term defined by the statute to include “burglary, arson, or extortion, [a crime that] involves use of explosives, or” crimes that fall within the residual clause—that is, crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁴ In Johnson, prosecutors sought an enhanced sentence for a felon found in possession of a firearm, arguing that one of the defendant’s previous crimes—unlawful possession of a short-barreled shotgun— qualified as a violent felony because the crime amounted to one that “involve[d] conduct that presents a serious potential risk of physical injury to another.”¹¹¹⁵ To determine whether a crime falls within the residual clause, the Court had previously endorsed a “categorical approach”—that is, instead of looking to whether the facts of a specific offense presented a serious risk of physical injury to another, the Supreme Court had interpreted the ACCA to require courts to look to whether the underlying crime falls within a category such that the “ordinary case” of the crime would present a serious risk of physical injury.¹¹¹⁶ The Court in Johnson concluded that the residual clause was unconstitutionally vague because the clause’s requirement that courts determine what an “ordinary case” of a crime entails led to “grave uncertainty” about (1) how to estimate the risk posed by the crime and (2) how much risk was sufficient to qualify as a violent felony.¹¹¹⁷ For example, in determining whether attempted burglary ordinarily posed serious risks of physical injury, the Court suggested that reasonable minds could differ as to whether an attempted burglary would typically end in a violent encounter, resulting in the conclusion that the residual clause provided “no reliable way” to determine what crimes fell within its scope.¹¹¹⁸ In so holding, the Court relied heavily on the difficulties that federal courts (including the Supreme Court) have had in establishing consistent standards to adjudge the scope of the residual clause, noting that the failure of “persistent efforts” to establish a standard can provide evidence of vagueness.¹¹¹⁹

Entrapment.—Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems.¹¹²⁰ Thus, in order to deter such criminal behavior, police agents may “encourage” persons to engage in criminal behavior, such as selling narcotics or contraband,¹¹²¹ or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes.¹¹²² In such cases, an “entrapment” defense is often made, though it is unclear whether the basis for the defense is the Due Process Clause, the supervisory authority of the federal courts to deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have intended to punish conduct induced by police agents).¹¹²³

The Court has employed the so-called “subjective approach” in evaluating the defense of entrapment.¹¹²⁴ This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.”¹¹²⁵ If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement.¹¹²⁶ On the other hand, “[w]hen the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.”¹¹²⁷

Criminal Identification Process.—In criminal trials, the reliability and weight to be accorded an eyewitness identification ordinarily are for the jury to decide, guided by instructions by the trial judge and subject to judicial prerogatives under the rules of evidence to exclude otherwise relevant evidence whose probative value is substantially outweighed by its prejudicial impact or potential to mislead. At times, however, a defendant alleges an out-of-court identification in the presence of police is so ﬂawed that it is inadmissible as a matter of fundamental justice under due process.¹¹²⁸ These cases most commonly challenge such police-arranged procedures as lineups, showups, photographic displays, and the like.¹¹²⁹ But not all cases have alleged careful police orchestration.¹¹³⁰

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.¹¹³¹ Two elements are required for due process suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.¹¹³² Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.¹¹³³ The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.¹¹³⁴ Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.¹¹³⁵

Fair Trial.—As noted, the provisions of the Bill of Rights now applicable to the states contain basic guarantees of a fair trial— right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”¹¹³⁶ Conversely, “as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”¹¹³⁷

For instance, bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one’s right to a fair trial. Thus, in Tumey v. Ohio¹¹³⁸ it was held to violate due process for a judge to receive compensation out of the fines imposed on convicted defendants, and no compensation beyond his salary) “if he does not convict those who are brought before him.” Or, in other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors.¹¹³⁹ Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced.¹¹⁴⁰

Public hostility toward a defendant that intimidates a jury is, or course, a classic due process violation.¹¹⁴¹ More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.¹¹⁴² For instance, the impact of televising trials on a jury has been a source of some concern.¹¹⁴³

The fairness of a particular rule of procedure may also be the basis for due process claims, but such decisions must be based on the totality of the circumstances surrounding such procedures.¹¹⁴⁴ For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding all hypnotically refreshed testimony.¹¹⁴⁵ Or, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the state give the defendant pretrial notice of its rebuttal evidence on the alibi issue.¹¹⁴⁶ Due process is also violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.¹¹⁴⁷

The use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, has been held to raise due process concerns. In Deck v. Missouri,¹¹⁴⁸ the Court noted a rule dating back to English common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”¹¹⁴⁹ The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.”¹¹⁵⁰ Even where guilt has already been adjudicated, and a jury is considering the application of the death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge has made particularized findings that security or ﬂight risk requires it, can such restraints be used.

The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based on the particular circumstance of a case, two rules that (1) denied a defendant the right to cross-examine his own witness in order to elicit evidence exculpatory to the defendant¹¹⁵¹ and (2) denied a defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, denied the defendant his constitutional right to present his own defense in a meaningful way.¹¹⁵² Similarly, a questionable procedure may be saved by its combination with another. Thus, it does not deny a defendant due process to subject him initially to trial before a non-lawyer police court judge when there is a later trial de novo available under the state’s court system.¹¹⁵³

Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”¹¹⁵⁴

The above-quoted language was dictum,¹¹⁵⁵ but the principle it enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict¹¹⁵⁶ and has upset convictions found to have been so procured.¹¹⁵⁷ Extending the principle, the Court in Miller v. Pate¹¹⁵⁸ overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial.¹¹⁵⁹ In Brady v. Maryland,¹¹⁶⁰ the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.¹¹⁶¹ “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”¹¹⁶²

In United States v. Agurs,¹¹⁶³ the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.¹¹⁶⁴ Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it,¹¹⁶⁵ the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.¹¹⁶⁶ Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence. Under this third prong, if the prosecutor did not reveal the relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.¹¹⁶⁷

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Second, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley¹¹⁶⁸ .

In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.¹¹⁶⁹ This materiality standard, found in contexts outside of Brady inquiries,¹¹⁷⁰ is applied not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.¹¹⁷¹ Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.¹¹⁷²

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ . . . ‘[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”¹¹⁷³

Proof, Burden of Proof, and Presumptions.—It had long been presumed that “reasonable doubt” was the proper standard for criminal cases,¹¹⁷⁴ but, because the standard was so widely accepted, it was only relatively recently that the Court had the opportunity to pronounce it guaranteed by due process. In 1970, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”¹¹⁷⁵

The standard is closely related to the presumption of innocence, which helps to ensure a defendant a fair trial,¹¹⁷⁶ and requires that a jury consider a case solely on the evidence.¹¹⁷⁷ “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’”¹¹⁷⁸

The Court had long held that, under the Due Process Clause, it would set aside convictions that are supported by no evidence at all.¹¹⁷⁹ The holding of the Winship case, however, left open the question as to whether appellate courts should weigh the sufficiency of trial evidence. Thus, in Jackson v. Virginia,¹¹⁸⁰ the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.¹¹⁸¹

Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged,¹¹⁸² the Court held in Mullaney v. Wilbur¹¹⁸³ that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision, however, called into question the practice in many states under which some burdens of persuasion¹¹⁸⁴ were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant and weighty task given the large numbers of affirmative defenses.

The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense,¹¹⁸⁵ and, later, in Patterson v. New York,¹¹⁸⁶ upheld a state statute that required a defendant asserting “extreme emotional disturbance” as an affirmative defense to murder¹¹⁸⁷ to prove such by a preponderance of the evidence. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, while allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense.¹¹⁸⁸ This distinction has been criticized as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses.¹¹⁸⁹

Despite the requirement that states prove each element of a criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be limited in the evidence that he may present to challenge this presumption. In Clark v. Arizona,¹¹⁹⁰ the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense. In Clark, the Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to the controversial character of some categories of mental disease, the potential of mental-disease evidence to mislead, and the danger of according greater certainty to such evidence than experts claim for it.¹¹⁹¹

Another important distinction that can substantially affect a prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence” standard. The Court has taken a formalistic approach to this issue, allowing states to designate essentially which facts fall under which of these two categories. For instance, the Court has held that whether a defendant “visibly possessed a gun” during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence.¹¹⁹²

Although the Court has generally deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi v. New Jersey. In Apprendi the Court held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.¹¹⁹³ This led, in turn, to the Court’s overruling conﬂicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.¹¹⁹⁴ These holdings are subject to at least one exception, however,¹¹⁹⁵ and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range.

Another closely related issue is statutory presumptions, where proof of a “presumed fact” that is a required element of a crime, is established by another fact, the “basic fact.”¹¹⁹⁶ In Tot v. United States,¹¹⁹⁷ the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test. In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. “Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.”

In Leary v. United States,¹¹⁹⁸ this due process test was stiffened to require that, for such a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to ﬂow from the proved fact on which it is made to depend.” Thus, the Court voided a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States is of foreign origin, there was still a good amount produced domestically and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.¹¹⁹⁹ The Court left open the question whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.”¹²⁰⁰

In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”¹²⁰¹ But, with respect to permissive presumptions, “the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.”¹²⁰² Thus, due process was not violated by the application of the statute that provides that “the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.”¹²⁰³ The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled nature of the issues they concern.

The Problem of the Incompetent or Insane Defendant.—It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial.¹²⁰⁴ When it becomes evident during the trial that a defendant is or has become insane or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue.¹²⁰⁵ Although there is no constitutional requirement that the state assume the burden of proving a defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.¹²⁰⁶

When a state determines that a person charged with a criminal offense is incompetent to stand trial, he cannot be committed indefinitely for that reason. The court’s power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, then the state must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen.¹²⁰⁷

Where a defendant is found competent to stand trial, a state appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.¹²⁰⁸ The Court has identified several tests that are used by states in varying combinations to address the issue: the M’Naghten test (cognitive incapacity or moral incapacity),¹²⁰⁹ volitional incapacity,¹²¹⁰ and the irresistible-impulse test.¹²¹¹ “[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”¹²¹²

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted.¹²¹³ The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence “therefore is irrelevant to the purposes of . . . commitment.”¹²¹⁴ Thus, the insanity-defense acquittee may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”¹²¹⁵ It follows, however, that a state may not indefinitely confine an insanity-defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.¹²¹⁶

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing a person who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding that satisfies the requirements of due process.¹²¹⁷ Due process is not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board.¹²¹⁸ The Court, however, left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”¹²¹⁹

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing a person who is mentally retarded, and added, “As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’”¹²²⁰

Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper,¹²²¹ the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United States,¹²²² the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case.¹²²³ Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense.¹²²⁴ Although the government may not structure its system so as to coerce a guilty plea,¹²²⁵ a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections.¹²²⁶ The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system,¹²²⁷ and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.¹²²⁸ But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.¹²²⁹

In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly,¹²³⁰ and “the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”¹²³¹

Sentencing.—In the absence of errors by the sentencing judge,¹²³² or of sentencing jurors considering invalid factors,¹²³³ the significance of procedural due process at sentencing is limited.¹²³⁴ In Williams v. New York,¹²³⁵ the Court upheld the imposition of the death penalty, despite a jury’s recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material. Further, disclosure of such information to the defense could well dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida,¹²³⁶ however, the Court limited the application of Williams to capital cases.¹²³⁷

In United States v. Grayson,¹²³⁸ a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed. the Court declared that, under the current scheme of individualized indeterminate sentencing, the judge must be free to consider the broadest range of information in assessing the defendant’s prospects for rehabilitation; defendant’s truthfulness, as assessed by the trial judge from his own observations, is relevant information.¹²³⁹

There are various sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.¹²⁴⁰ Thus, in Specht v. Patterson,¹²⁴¹ the Court considered a defendant who had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay,¹²⁴² the Court held that, when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected.

Due process considerations can also come into play in sentencing if the state attempts to withhold relevant information from the jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.¹²⁴³ But, in Ramdass v. Angelone,¹²⁴⁴ the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.

A defendant should not be penalized for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.¹²⁴⁵ If the judge does impose a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.¹²⁴⁶

Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence.¹²⁴⁷ The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.¹²⁴⁸

Corrective Process: Appeals and Other Remedies.—“An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.”¹²⁴⁹ This holding has been reaffirmed,¹²⁵⁰ although the Court has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.¹²⁵¹

A state is not free, however, to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum,¹²⁵² the Court asserted that a conviction obtained in a mob-dominated trial was contrary to due process: “if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.” Consequently, the Court has stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment,¹²⁵³ and the Court has held that to burden this process, such as by limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights.¹²⁵⁴

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. “Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.”¹²⁵⁵ If a state provides a mode of redress, then a defendant must first exhaust that mode. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.¹²⁵⁶

When appellate or other corrective process is made available, because it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court’s sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law.¹²⁵⁷ But, in Moore v. Dempsey,¹²⁵⁸ while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court’s deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi¹²⁵⁹ and now taken for granted.

The Court has held, however, that the Due Process Clause does not provide convicted persons a right to postconviction access to the state’s evidence for DNA testing.¹²⁶⁰ Chief Justice Roberts, in a fivetofour decision, noted that 46 states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute that allows federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate postconviction relief procedures. The Court, therefore, saw “no reason to constitutionalize the issue.”¹²⁶¹ It also expressed concern that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers . . . . We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when?”¹²⁶²

Rights of Prisoners.—Until relatively recently the view prevailed that a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.”¹²⁶³ This view is not now the law, and may never have been wholly correct.¹²⁶⁴ In 1948 the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights”;¹²⁶⁵ “many,” indicated less than “all,” and it was clear that the Due Process and Equal Protection Clauses to some extent do apply to prisoners.¹²⁶⁶ More direct acknowledgment of constitutional protection came in 1972: “[f]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances . . . .”¹²⁶⁷ However, while the Court affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, at the same time concerns of federalism and of judicial restraint caused the Court to emphasize the necessity of deference to the judgments of prison officials and others with responsibility for administering such systems.¹²⁶⁸

Save for challenges to conditions of confinement of pretrial detainees,¹²⁶⁹ the Court has generally treated challenges to prison conditions as a whole under the Cruel and Unusual Punishments Clause of the Eighth Amendment,¹²⁷⁰ while challenges to particular incidents and practices are pursued under the Due Process Clause¹²⁷¹ or more specific provisions, such as the First Amendment’s speech and religion clauses.¹²⁷² Prior to formulating its current approach, the Court recognized several rights of prisoners. Prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,¹²⁷³ and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators.¹²⁷⁴ And they have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.¹²⁷⁵

In Turner v. Saﬂey,¹²⁷⁶ the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”¹²⁷⁷ Several considerations, the Court indicated, are appropriate in determining reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness.¹²⁷⁸ A further indicium of reasonableness is present if accommodation would have a negative effect on the liberty or safety of guards, other inmates,¹²⁷⁹ or visitors.¹²⁸⁰ On the other hand, “if an inmate claimant can point to an alternative that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests,” it would suggest unreasonableness.¹²⁸¹

Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions”; hence, a prisoner has no reasonable expectation of privacy in his prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.¹²⁸² Avenues of redress “for calculated harassment unrelated to prison needs” are not totally blocked, the Court indicated; inmates may still seek protection in the Eighth Amendment or in state tort law.¹²⁸³ Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.¹²⁸⁴ Due process is not implicated at all by negligent deprivation of life, liberty, or property by prison officials.¹²⁸⁵

A change of the conditions under which a prisoner is housed, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an “atypical and significant hardship” on the inmate.¹²⁸⁶ In Wolff v. McDonnell,¹²⁸⁷ the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Due process applies, but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of a defendant’s rights is not available. Rather, the analysis must proceed by identifying the interest in “liberty” that the clause protects. Thus, where the state provides for good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of “liberty” entitles him to the minimum procedures appropriate under the circumstances.¹²⁸⁸ What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.

The Court in Wolff held that the prison must afford the subject of a disciplinary proceeding “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken.”¹²⁸⁹ In addition, an “inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.”¹²⁹⁰ Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would no doubt threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose.¹²⁹¹ Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.¹²⁹²

Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about.¹²⁹³ The same principles govern interstate prison transfers.¹²⁹⁴

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.¹²⁹⁵ On the other hand, transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must, for two reasons, be preceded by a hearing. First, the statute gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.¹²⁹⁶

The kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Harper.¹²⁹⁷ There the Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which hearing the inmate has the right to a lay advisor but not an attorney.

Probation and Parole.—Sometimes convicted defendants are not sentenced to jail, but instead are placed on probation subject to incarceration upon violation of the conditions that are imposed; others who are jailed may subsequently qualify for release on parole before completing their sentence, and are subject to reincarceration upon violation of imposed conditions. Because both of these dispositions are statutory privileges granted by the governmental authority,¹²⁹⁸ it was long assumed that the administrators of the systems did not have to accord procedural due process either in the granting stage or in the revocation stage. Now, both granting and revocation are subject to due process analysis, although the results tend to be disparate. Thus, in Mempa v. Rhay,¹²⁹⁹ the trial judge had deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed that indicated a violation of the conditions of probation, he was summoned and summarily sentenced to prison. The Court held that he was entitled to counsel at the deferred sentencing hearing.

In Morrissey v. Brewer¹³⁰⁰ a unanimous Court held that parole revocations must be accompanied by the usual due process hearing and notice requirements. “[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inﬂicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege.’ By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.”¹³⁰¹ What process is due, then, turned upon the state’s interests. Its principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be “able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees,” inasmuch as such guarantees will not interfere with its reasonable interests.¹³⁰²

Minimal due process, the Court held, requires that at both stages of the revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take place and what violations are alleged, he should be able to appear and speak in his own behalf and produce other evidence, and he should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such informant should not be revealed. Also, the hearing officer should prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing.¹³⁰³

Prior to the final decision on revocation, there should be a more formal revocation hearing at which there would be a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody and he must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process. “They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.”¹³⁰⁴ Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,¹³⁰⁵ but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.¹³⁰⁶

The Court has applied a ﬂexible due process standard to the provision of counsel. Counsel is not invariably required in parole or probation revocation proceedings. The state should, however, provide the assistance of counsel where an indigent person may have difficulty in presenting his version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be uncontested, there are reasons in justification or mitigation that might make revocation inappropriate.¹³⁰⁷

With respect to the granting of parole, the Court’s analysis of the Due Process Clause’s meaning in Greenholtz v. Nebraska Penal Inmates¹³⁰⁸ is much more problematical. The theory was rejected that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expectation of being dealt with in any particular way. On the other hand, the Court did recognize that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a casebycase basis,¹³⁰⁹ and the full panoply of due process guarantees is not required.¹³¹⁰ Where, however, government by its statutes and regulations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in the great number of cases demonstrate such a legitimate expectancy. The power of the executive to pardon, or grant clemency, being a matter of grace, is rarely subject to judicial review.¹³¹¹

The Problem of the Juvenile Offender.—All fifty states and the District of Columbia provide for dealing with juvenile offenders outside the criminal system for adult offenders.¹³¹² Their juvenile justice systems apply both to offenses that would be criminal if committed by an adult and to delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, deportment endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. The reforms of the early part of the 20th century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process. Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not dispensing criminal punishment, and offering the theory that the state was acting as parens patriae for the juvenile offender and was in no sense his adversary.¹³¹³

Disillusionment with the results of juvenile reforms coupled with judicial emphasis on constitutional protection of the accused led in the 1960s to a substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault¹³¹⁴ that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the features of the system which were deemed desirable—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, the low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.¹³¹⁵

Thus, the Court in Gault required that notice of charges be given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation and cross-examination, and required that the juvenile be protected against self-incrimination.¹³¹⁶ It did not pass upon the right of appeal or the failure to make transcripts of hearings. Earlier, the Court had held that before a juvenile could be “waived” to an adult court for trial, there had to be a hearing and findings of reasons, a result based on statutory interpretation but apparently constitutionalized in Gault.¹³¹⁷ Subsequently, the Court held that the “essentials of due process and fair treatment” required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult,¹³¹⁸ but still later the Court held that jury trials were not constitutionally required in juvenile trials.¹³¹⁹

On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles. In one such case the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but indicated as well that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach “permits— indeed it mandates—inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him . . . .”¹³²⁰ In another case the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.¹³²¹ Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities.¹³²²

The Court ruled in Schall v. Martin¹³²³ that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous and unnecessary detentions. A statute authorizing pretrial detention of accused juvenile delinquents on a finding of “serious risk” that the juvenile would commit crimes prior to trial, providing for expedited hearings (the maximum possible detention was 17 days), and guaranteeing a formal, adversarial probable cause hearing within that period, was found to satisfy these requirements.

Each state has a procedure by which juveniles may be tried as adults.¹³²⁴ With the Court having clarified the constitutional requirements for imposition of capital punishment, it was only a matter of time before the Court would have to determine whether states may subject juveniles to capital punishment. In Stanford v. Kentucky,¹³²⁵ the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age 16.¹³²⁶ In weighing validity under the Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists.¹³²⁷ Still to be considered by the Court are such questions as the substantive and procedural guarantees to be applied in proceedings when the matter at issue is non-criminal delinquent behavior.

The Problem of Civil Commitment.—As with juvenile offenders, several other classes of persons are subject to confinement by court processes deemed civil rather than criminal. Within this category of “protective commitment” are involuntary commitments for treatment of insanity and other degrees of mental disability, alcoholism, narcotics addiction, sexual psychopathy, and the like. In O’Connor v. Donaldson,¹³²⁸ the Court held that “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”¹³²⁹ The jury had found that Donaldson was not dangerous to himself or to others, and the Court ruled that he had been unconstitutionally confined.¹³³⁰ Left to another day were such questions as “when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person—to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness”¹³³¹ and the right, if any, to receive treatment for the confined person’s illness. To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful post-deprivation remedy can cure the due process violation.¹³³²

Procedurally, it is clear that an individual’s liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires the government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of beyond a reasonable doubt is not necessary because the state’s aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of “clear and convincing” evidence.¹³³³

In Parham v. J. R., the Court confronted difficult questions as to what due process requires in the context of commitment of allegedly mentally ill and mentally retarded children by their parents or by the state, when such children are wards of the state.¹³³⁴ Under the challenged laws there were no formal preadmission hearings, but psychiatric and social workers did interview parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced this against such factors as the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children’s welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing such care and interfere with the ability of parents to assist with the care of institutionalized children.¹³³⁵ Similarly, the same concerns, reﬂected in the statutory obligation of the state to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the government.¹³³⁶ Left to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement.¹³³⁷

⁷³⁷ Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).

⁷³⁸ Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884).

⁷³⁹ See Medina v. California 505 U.S. 437, 443 (1992).

⁷⁴⁰ Id.

⁷⁴¹ See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See 581 U.S. ___, No. 15–1256, slip op. at 6 (2017).

⁷⁴² Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899). “A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.” Hurtado v. California, 110 U.S. at 529.

⁷⁴³ Twining, 211 U.S. at 101.

⁷⁴⁴ Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).

⁷⁴⁵ Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

⁷⁴⁶ For instance, proceedings to raise revenue by levying and collecting taxes are not necessarily judicial proceedings, yet their validity is not thereby impaired. McMillen v. Anderson, 95 U.S. 37, 41 (1877).

⁷⁴⁷ Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony).

⁷⁴⁸ See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits).

⁷⁴⁹ State statutes vesting in a parole board certain judicial functions, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court authority to appoint park commissioners and establish park districts, Ohio v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conﬂict with the Due Process Clause and present no federal question.

⁷⁵⁰ Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

⁷⁵¹ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

⁷⁵² Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

⁷⁵³ Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

⁷⁵⁴ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where taxpayer who challenged a county’s occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

⁷⁵⁵ Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed”; the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so).

⁷⁵⁶ Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970).

⁷⁵⁷ Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).

⁷⁵⁸ City of West Covina v. Perkins, 525 U.S. 234 (1999).

⁷⁵⁹ Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

⁷⁶⁰ Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Justice Frankfurter concurring).

⁷⁶¹ Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

⁷⁶² Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955).

⁷⁶³ Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

⁷⁶⁴ Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982).

⁷⁶⁵ Gibson v. Berryhill, 411 U.S. 564 (1973). Or, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others’ investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).

⁷⁶⁶ Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941).

⁷⁶⁷ Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies. Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.” Id. at 249.

⁷⁶⁸ Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196–99 (Justice White), and 216 (Justice Marshall).

⁷⁶⁹ 556 U.S. ___, No. 08–22, slip op. at 6 (2009) (citations omitted).

⁷⁷⁰ 556 U.S. ___, No. 08–22, slip op. at 6, quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927).

⁷⁷¹ 556 U.S. ___, No. 08–22, slip op. at 6 (citations omitted).

⁷⁷² 556 U.S. ___, No. 08–22, slip op. at 7, 9.

⁷⁷³ 556 U.S. ___, No. 08–22, slip op. at 11 (citations omitted).

⁷⁷⁴ 556 U.S. ___, No. 08–22, slip op. at 15.

⁷⁷⁵ 556 U.S. ___, No. 08–22, slip op. at 14. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any limited way,” “provides no guidance to judges and litigants about when recusal will be constitutionally required,” and “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.” Slip. op. at 1 (Roberts, C.J., dissenting). The majority countered that “[t]he facts now before us are extreme in any measure.” Slip op. at 17.

⁷⁷⁶ 579 U.S. ___, No. 15–5040, slip op. at 1 (2016).

⁷⁷⁷ Id. (internal quotations omitted).

⁷⁷⁸ Id. at 5–6.

⁷⁷⁹ Id. at 6 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)). The Court also noted that “[n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision.” Id. at 7.

⁷⁸⁰ Id. at 9. See also id. at 10 (noting that the judge in this case had highlighted the number of capital cases in which he participated when campaigning for judicial office).

⁷⁸¹ Id. at 8.

⁷⁸² Id. at 12–13. Likewise, the Court rejected the argument that remanding the case would not cure the underlying due process violation because the disqualified judge’s views might still inﬂuence his former colleagues, as an “inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Id. at 14.

⁷⁸³ Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d).

⁷⁸⁴ Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976).

⁷⁸⁵ Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).

⁷⁸⁶ RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 571 (1968–1970).

⁷⁸⁷ FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964).

⁷⁸⁸ The exclusiveness of the record is fundamental in administrative law. See § 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence).

⁷⁸⁹ Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (citations omitted).

⁷⁹⁰ 397 U.S. 254, 270–71 (1970).

⁷⁹¹ Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v. Eldridge, 424 U.S. 319 (1976), upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right. Thus, at least in this context, the value of the first Eldridge factor is diminished. The Court noted, however, that the Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case-by-case application. Cf. 424 U.S. at 344 (1976).

⁷⁹² Turner v. Rogers, 564 U.S. ___, No. 10–10, slip op. (2011). The Turner Court denied an indigent defendant appointed counsel in a civil contempt proceeding to enforce a child support order, even though the defendant faced incarceration unless he showed an inability to pay the arrearages. The party opposing the defendant in the case was not the state, but rather the unrepresented custodial parent, nor was the case unusually complex. A five-Justice majority, though denying a right to counsel, nevertheless reversed the contempt order because it found that the procedures followed remained inadequate.

⁷⁹³ 452 U.S. at 31–32. The balancing decision is to be made initially by the trial judge, subject to appellate review. Id. at 32

⁷⁹⁴ 452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.

⁷⁹⁵ See, e.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded blood testing in a paternity action the state required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights).

⁷⁹⁶ Morrissey v. Brewer, 408 U.S. 471, 481 (1982). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).

⁷⁹⁷ For instance, at common law, one’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law, and only for offenses deemed by a legislative body to be particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo-American countries.

⁷⁹⁸ Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).

⁷⁹⁹ Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).

⁸⁰⁰ Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).

⁸⁰¹ See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 685 (2d. ed) (1988).

⁸⁰² Tribe, supra, at 1084–90.

⁸⁰³ McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892).

⁸⁰⁴ Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of Educ., 342 U.S. 485 (1952).

⁸⁰⁵ Flemming v. Nestor, 363 U.S. 603 (1960).

⁸⁰⁶ Barsky v. Board of Regents, 347 U.S. 442 (1954).

⁸⁰⁷ Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958).

⁸⁰⁸ See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do with imposition of conditions on admitting corporations into a state. Cf. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981) (reviewing the cases). The right-privilege distinction is not, however, totally moribund. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971).

⁸⁰⁹ This means that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982).

⁸¹⁰ 397 U.S. 254 (1970).

⁸¹¹ 397 U.S. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).

⁸¹² Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972).

⁸¹³ 408 U.S. at 577. Although property interests often arise by statute, the Court has also recognized interests established by state case law. Thus, where state court holdings required that private utilities terminate service only for cause (such as nonpayment of charges), then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).

⁸¹⁴ 436 U.S. at 576–78. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the state had not made any charges against him or taken any actions that would damage his reputation or stigmatize him. 436 at 572–75. For an instance of protection accorded a claimant on the basis of such an action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347–50 (1976); Vitek v. Jones, 445 U.S. 480, 491–94 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82–84 (1978).

⁸¹⁵ 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).

⁸¹⁶ 408 U.S. at 601–03 (1972). In contrast, a statutory assurance was found in Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations allowed suspension or termination “only for such cause as would promote the efficiency of the service.” 416 U.S. at 140. On the other hand, a policeman who was a “permanent employee” under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was held not to be protected by the Due Process Clause because the federal district court interpreted the ordinance as providing only employment at the will and pleasure of the city, an interpretation that the Supreme Court chose not to disturb. Bishop v. Wood, 426 U.S. 341 (1976). “On its face,” the Court noted, “the ordinance on which [claimant relied] may fairly be read as conferring” both “a property interest in employment . . . [and] an enforceable expectation of continued public employment.” 426 U.S. at 344–45 (1976). The district court’s decision had been affirmed by an equally divided appeals court and the Supreme Court deferred to the presumed greater expertise of the lower court judges in reading the ordinance. 426 U.S. at 345 (1976).

⁸¹⁷ 408 U.S. at 601.

⁸¹⁸ 419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions).

⁸¹⁹ Goss v. Lopez, 419 U.S. at 574. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer’s license); O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care).

⁸²⁰ Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). Although the Court “assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment” in a state university, this limited constitutional right is violated only by a showing that dismissal resulted from “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 474 U.S. at 225.

⁸²¹ 545 U.S. 748 (2005).

⁸²² 545 U.S. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.” Id. at 763.

⁸²³ 545 U.S. at 764–65.

⁸²⁴ 416 U.S. 134 (1974).

⁸²⁵ 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

⁸²⁶ 416 U.S. at 154.

⁸²⁷ 416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at 177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan dissenting).

⁸²⁸ 426 U.S. 341 (1976). A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had disagreed with the theory in Arnett.See id. at 350, 353 n.4, 355 (dissenting opinions). The language is ambiguous and appears at different points to adopt both positions. But see id. at 345, 347.

⁸²⁹ 419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting).

⁸³⁰ 419 U.S. at 584, 586–87 (Justice Powell dissenting).

⁸³¹ Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

⁸³² 455 U.S. 422 (1982).

⁸³³ 455 U.S. at 428–33 A different majority of the Court also found an equal protection denial. 455 U.S. at 438.

⁸³⁴ These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See “Fundamental Rights (Noneconomic Due Process),” supra.

⁸³⁵ 430 U.S. 651 (1977).

⁸³⁶ 430 U.S. at 673. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source of liberty interests for procedural protection. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to have custody of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1 (1981); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982).

⁸³⁷ Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 U.S. 565 (1975).

⁸³⁸ 400 U.S. 433 (1971).

⁸³⁹ But see Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (posting of accurate information regarding sex offenders on state Internet website does not violate due process as the site does not purport to label the offenders as presently dangerous).

⁸⁴⁰ 424 U.S. 693 (1976).

⁸⁴¹ Here the Court, 424 U.S. at 701–10, distinguished Constantineau as being a “reputation-plus” case. That is, it involved not only the stigmatizing of one posted but it also “deprived the individual of a right previously held under state law—the right to purchase or obtain liquor in common with the rest of the citizenry.” 424 U.S. at 708. How the state law positively did this the Court did not explain. But, of course, the reputation-plus concept is now well-settled. See discussion below. See also Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711–12 (1976). In a later case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978).

⁸⁴² 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

⁸⁴³ 445 U.S. 480 (1980).

⁸⁴⁴ Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

⁸⁴⁵ Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners).

⁸⁴⁶ Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459–63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain “substantive predicates” but lack mandatory language).

⁸⁴⁷ Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”); Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”).

⁸⁴⁸ Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

⁸⁴⁹ Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982).

⁸⁵⁰ United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

⁸⁵¹ 410 U.S. at 245 (distinguishing between rule-making, at which legislative facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908).

⁸⁵² “It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts, secures to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process.” Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944).

⁸⁵³ Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

⁸⁵⁴ Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

⁸⁵⁵ Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v. Baker, Eccles & Co., 242 U.S. 294, 403 (1917); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).

⁸⁵⁶ Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if one would suffer too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972).

⁸⁵⁷ American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982).

⁸⁵⁸ Saunders v. Shaw, 244 U.S. 317 (1917).

⁸⁵⁹ “The extent to which procedural due process must be afforded the recipient is inﬂuenced by the extent to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). “The very nature of due process negates any concept of inﬂexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894–95 (1961).

⁸⁶⁰ 424 U.S. 319, 335 (1976).

⁸⁶¹ 397 U.S. 254, 264 (1970).

⁸⁶² Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976).

⁸⁶³ Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Shevin, 407 U.S. 67, 99–100 (1972), did not repeat it in North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of DiChem.

⁸⁶⁴ 395 U.S. 337 (1969).

⁸⁶⁵ North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. subject due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the earlier case).

⁸⁶⁶ 407 U.S. (1972).

⁸⁶⁷ Fuentes was an extension of the Sniadach principle to all “significant property interests” and thus mandated pre-deprivation hearings. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di-Chem, 419 U.S. at 616–19 (Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart dissenting).

⁸⁶⁸ Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the Mathews v. Eldridge formula in holding that Connecticut’s prejudgment attachment statute, which “fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance,” operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). “[T]he relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.” 501 U.S. at 11.

⁸⁶⁹ Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and at 623 (Justice Powell concurring). See also Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of “no state action,” but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Bros. v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman’s sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in “nonclaim” statute).

⁸⁷⁰ Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), and 416 U.S. at 195–96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified an interim suspension without a hearing once it established the existence of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. See also FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre-suspension hearing, and with 90-day delay before decision resulting from post-suspension hearing).

⁸⁷¹ Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).

⁸⁷² E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of driver’s license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts).

⁸⁷³ Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

⁸⁷⁴ 481 U.S. 252 (1987). Justice Marshall’s plurality opinion was joined by Justices Blackmun, Powell, and O’Connor; Chief Justice Rehnquist and Justice Scalia joined Justice White’s opinion taking a somewhat narrower view of due process requirements but supporting the plurality’s general approach. Justices Brennan and Stevens would have required confrontation and cross-examination.

⁸⁷⁵ For analysis of the case’s implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 SUP. CT. REV. 157.

⁸⁷⁶ 538 U.S. 715 (2003).

⁸⁷⁷ See Nelson v. Colorado, 581 U.S. ___, No. 15–1256, slip op. at 1 (2017).

⁸⁷⁸ See id. at 4–5 (describing Colorado’s Exoneration Act). Initially, the Court concluded that because the case concerned the “continuing deprivation of property after a [criminal] conviction” was reversed or vacated and “no further criminal process” was implicated by the case, the appropriate lens to examine the Exoneration Act was through the Mathews balancing test that generally applies in civil contexts. Id. at 5–6. The Court noted, however, that even under the test used to examine criminal due process rights—the fundamental fairness approach—Colorado’s Exoneration Act would still fail to provide adequate due process because the state’s procedures offend a fundamental principle of justice—the presumption of innocence. Id. at 7 n.9.

⁸⁷⁹ Id. at 1.

⁸⁸⁰ Id. at 6.

⁸⁸¹ Id. In so concluding, the Court rejected Colorado’s argument that the money in question belonged to the state because the criminal convictions were in place at the time the funds were taken. Id. The Court reasoned that after a conviction has been reversed, the criminal defendant is presumed innocent and any funds provided to the state as a result of the conviction rightfully belong to the person who was formerly subject to the prosecution. Id. at 7 (“Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”) (emphasis in original).

⁸⁸² Id. at 8–9. In particular, the Court noted that when a defendant seeks to recoup small amounts of money under the Exoneration Act, the costs of mounting a claim and retaining a lawyer “would be prohibitive,” amounting to “no remedy at all” for any minor assessments under the Act. Id. at 9.

⁸⁸³ Id. at 10.

⁸⁸⁴ Id.

⁸⁸⁵ See, e.g., Lujan v. G & G Fire Sprinklers, Inc., 523 U.S. 189 (2001) (breach of contract suit against state contractor who withheld payment to subcontractor based on state agency determination of noncompliance with Labor Code sufficient for due process purposes).

⁸⁸⁶ Ingraham v. Wright, 430 U.S. 651, 680–82 (1977).

⁸⁸⁷ Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19–22 (1987), involving cutoff of utility service for non-payment of bills, the Court rejected the argument that common-law remedies were sufficient to obviate the pre-termination hearing requirement.

⁸⁸⁸ Logan v. Zimmerman Brush Co., 455 U.S. at 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inﬂicted by a state procedure would be inadequate. “That is particularly true where, as here, the State’s only post-termination process comes in the form of an independent tort action. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole.” 455 U.S. 422, 436–37.

⁸⁸⁹ 455 U.S. at 436.

⁸⁹⁰ More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), held that the loss of a prisoner’s mail-ordered goods through the negligence of prison officials constituted a deprivation of property, but that the state’s post-deprivation tort-claims procedure afforded adequate due process. When a state officer or employee acts negligently, the Court recognized, there is no way that the state can provide a pre-termination hearing; the real question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the Due Process Clause is satisfied by the provision of a judicial remedy which the claimant must initiate. 451 U.S. at 541, 543–44. It should be noted that Parratt was a property loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not be adequate process. See Ingraham v. Wright, 430 U.S. at 680–82.

⁸⁹¹ Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials). Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. § 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor § 1983 provides a federal remedy.

⁸⁹² Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981). Of course, one may waive his due process rights, though as with other constitutional rights, the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972).

⁸⁹³ North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). See also Fahey v. Mallonee, 332 U.S. 245 (1948). Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979).

⁸⁹⁴ Phillips v. Commissioner, 283 U.S. 589, 597 (1931).

⁸⁹⁵ Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921).

⁸⁹⁶ Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961).

⁸⁹⁷ 367 U.S. at 894, 895, 896 (1961).

⁸⁹⁸ 367 U.S. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and 416 U.S. at 181–183 (Justice White concurring in part and dissenting in part).

⁸⁹⁹ Scott v. McNeal, 154 U.S. 34, 64 (1894).

⁹⁰⁰ 95 U.S. 714 (1878).

⁹⁰¹ Although these two principles were drawn from the writings of Joseph Story refining the theories of continental jurists, Hazard, A General Theory of State-Court Jurisdiction, 1965 SUP. CT. REV. 241, 252–62, the constitutional basis for them was deemed to be in the Due Process Clause of the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 714, 733–35 (1878). The Due Process Clause and the remainder of the Fourteenth Amendment had not been ratified at the time of the entry of the state-court judgment giving rise to the case. This inconvenient fact does not detract from the subsequent settled use of this constitutional foundation. Pennoyer denied full faith and credit to the judgment because the state lacked jurisdiction.

⁹⁰² 95 U.S. at 722. The basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is two-fold: a concern for “fair play and substantial justice” involved in requiring defendants to litigate cases against them far from their “home” or place of business. International Shoe Co. v. Washington, 326 U.S. 310, 316, 317 (1945); Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm., 339 U.S. 643, 649 (1950); Shaffer v. Heitner, 433 U.S. 186, 204 (1977), and, more important, a concern for the preservation of federalism. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v. Denckla, 357 U.S. 235, 251 (1958). The Framers, the Court has asserted, while intending to tie the States together into a Nation, “also intended that the States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State, in turn, implied a limitation on the sovereignty of all its sister States—a limitation express or implicit in both the original scheme of the Constitution and the Fourteenth Amendment.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). Thus, the federalism principle is preeminent. “[T]he Due Process Clause ‘does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.’ . . . Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” 444 U.S. at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).

⁹⁰³ International Shoe Co. v. Washington, 326 U.S. 310 (1945)). As the Court explained in McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957), “[w]ith this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)). The first principle, that a State may assert jurisdiction over anyone or anything physically within its borders, no matter how brieﬂy there—the so-called “transient” rule of jurisdiction— McDonald v. Mabee, 243 U.S. 90, 91 (1917), remains valid, although in Shaffer v. Heitner, 433 U.S. 186, 204 (1977), the Court’s dicta appeared to assume it is not.

⁹⁰⁴ National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).

⁹⁰⁵ McDonald v. Mabee, 243 U.S. 90, 91 (1917). Cf. Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). The rule has been strongly criticized but persists. Ehrenzweig, The Transient Rule of Personal Jurisdiction: The ‘Power’ Myth and Forum Conveniens, 65 YALE L. J. 289 (1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990), the Court held that service of process on a nonresident physically present within the state satisfies due process regardless of the duration or purpose of the nonresident’s visit.

⁹⁰⁶ Milliken v. Meyer, 311 U.S. 457 (1940).

⁹⁰⁷ McDonald v. Mabee, 243 U.S. 90 (1917).

⁹⁰⁸ Rees v. City of Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v. Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin, 327 U.S. 220 (1946).

⁹⁰⁹ Sugg v. Thornton, 132 U.S. 524 (1889); Riverside Mills v. Menefee, 237 U.S. 189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355 (1927). See also Harkness v. Hyde, 98 U.S. 476 (1879); Wilson v. Seligman, 144 U.S. 41 (1892).

⁹¹⁰ Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900); Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes, 252 U.S. 469 (1920). See also Adam v. Saenger, 303 U.S. 59 (1938) (plaintiff suing defendants deemed to have consented to jurisdiction with respect to counterclaims asserted against him).

⁹¹¹ State legislation which provides that a defendant who comes into court to challenge the validity of service upon him in a personal action surrenders himself to the jurisdiction of the court, but which allows him to dispute where process was served, is constitutional and does not deprive him of property without due process of law. In such a situation, the defendant may ignore the proceedings as wholly ineffective, and attack the validity of the judgment if and when an attempt is made to take his property thereunder. If he desires, however, to contest the validity of the court proceedings and he loses, it is within the power of a state to require that he submit to the jurisdiction of the court to determine the merits. York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138 U.S. 285 (1891); Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914).

⁹¹² Hess v. Pawloski, 274 U.S. 352 (1927); Wuchter v. Pizzutti, 276 U.S. 13 (1928); Olberding v. Illinois Cent. R.R., 346 U.S. 338, 341 (1953).

⁹¹³ Hess v. Pawloski, 274 U.S. 352, 356–57 (1927).

⁹¹⁴ 274 U.S. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919).

⁹¹⁵ Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

⁹¹⁶ 326 U.S. 310, 316 (1945).

⁹¹⁷ 436 U.S. 84 (1978).

⁹¹⁸ Kulko had visited the state twice, seven and six years respectively before initiation of the present action, his marriage occurring in California on the second visit, but neither the visits nor the marriage was sufficient or relevant to jurisdiction. 436 U.S. at 92–93.

⁹¹⁹ 436 U.S. at 92.

⁹²⁰ 436 U.S. at 96–98.

⁹²¹ 571 U.S. ___, No. 12–574, slip op. (2014). This type of “jurisdiction” is often referred to as “specific jurisdiction.”

⁹²² Id. at 6–8.

⁹²³ Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839).

⁹²⁴ 326 U.S. 310 (1945).

⁹²⁵ Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855); St. Clair v. Cox, 196 U.S. 350 (1882); Commercial Mutual Accident Co. v. Davis, 213 U.S. 245 (1909); Simon v. Southern Ry., 236 U.S. 115 (1915); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).

⁹²⁶ Presence was first independently used to sustain jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), although the possibility was suggested as early as St. Clair v. Cox, 106 U.S. 350 (1882). See also Philadelphia & Reading Ry. v. McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for Court).

⁹²⁷ E.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); St. Louis S.W. Ry. v. Alexander, 227 U.S. 218 (1913).

⁹²⁸ Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 920 (2011)) (holding Daimler Chrysler, a German public stock company, could not be subject to suit in California with respect to acts taken in Argentina by Argentinian subsidiary of Daimler, notwithstanding the fact that Daimler Chrysler had a U.S. subsidiary that did business in California).

⁹²⁹ Id. at 18–19.

⁹³⁰ Id. at 20 n. 19. For example, the Court held that an Ohio court could exercise general jurisdiction over a defendant corporation that was forced to relocate temporarily from the Philippines to Ohio, making Ohio the “center” of the corporation’s activities. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447–48 (1952).

⁹³¹ See BNSF R.R. Co. v. Tyrrell, 581 U.S. ___, No. 16–405, slip op. at 11–12 (2017) (holding that Montana courts could not exercise general jurisdiction over a railroad company that had over 2,000 miles of track and more than 2,000 employees in the state because the company was not incorporated or headquarted in Montana and the overall activity of the company in Montana was not “so substantial” as to render the corporation “at home” in the state).

⁹³² E.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984); Davis v. Farmers Co-operative Co., 262 U.S. 312 (1923); Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923); Simon v. S. Ry., 236 U.S. 115, 129–30 (1915); Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907); Old Wayne Life Ass’n v. McDonough, 204 U.S. 8 (1907). Continuous operations were sometimes sufficiently substantial and of a nature to warrant assertions of jurisdiction. St. Louis S.W. Ry. Co. v. Alexander, 227 U.S. 218 (1913); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 922 (2011) (distinguishing application of stream-of-commerce analysis in specific cases of in-state injury from the degree of presence a corporation must maintain in a state to be amenable to general jurisdiction there).

⁹³³ Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921); Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). Jurisdiction would continue, however, if a state had conditioned doing business on a firm’s agreeing to accept service through state officers should it and its agent withdraw. Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364 (1933).

⁹³⁴ Solicitation of business alone was inadequate to constitute “doing business,” Green, 205 U.S. at 534, but when connected with other activities could suffice to confer jurisdiction. Int’l Harvester Co. v. Kentucky, 234 U.S. 579 (1914). Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141–42 (2d Cir. 1930) (Hand, J., providing survey of cases).

⁹³⁵ E.g., Riverside Mills v. Menefee, 237 U.S. 189, 195 (1915); Conley v. Mathieson Alkali Works, 190 U.S. 406 (1903); Goldey v. Morning News, 156 U.S. 518 (1895); but see Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 (1899).

⁹³⁶ 326 U.S. 310 (1945).

⁹³⁷ This departure was recognized by Justice Rutledge subsequently in Nippert v. City of Richmond, 327 U.S. 416, 422 (1946). Because International Shoe, in addition to having its agents solicit orders, also permitted them to rent quarters for the display of merchandise, the Court could have used International Harvester Co. v. Kentucky, 234 U.S. 579 (1914), to find it was “present” in the state.

⁹³⁸ International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945).

⁹³⁹ 326 U.S. at 319.

⁹⁴⁰ Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). The decision was 5-to-4 with one of the majority Justices also contributing a concurring opinion. Id. at 651 (Justice Douglas). The possible significance of the concurrence is that it appears to disagree with the implication of the majority opinion, id. at 647–48, that a state’s legislative jurisdiction and its judicial jurisdiction are coextensive. Id. at 652–53 (distinguishing between the use of the state’s judicial power to enforce its legislative powers and the judicial jurisdiction when a private party is suing). See id. at 659 (dissent).

⁹⁴¹ 339 U.S. at 647–49. The holding in Minnesota Commercial Men’s Ass’n v. Benn, 261 U.S. 140 (1923), that a similar mail order insurance company could not be viewed as doing business in the forum state and that the circumstances under which its contracts with forum state citizens, executed and to be performed in its state of incorporation, were consummated could not support an implication that the foreign company had consented to be sued in the forum state, was distinguished rather than formally overruled. 339 U.S. at 647. In any event, Benn could not have survived McGee v. International Life Ins. Co., 355 U.S. 220 (1957), below.

⁹⁴² McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

⁹⁴³ 355 U.S. at 223. The Court also noticed the proposition that the insured could not bear the cost of litigation away from home as well as the insurer. See also Perkins v. Benguet Consolidating Mining Co., 342 U.S. 437 (1952), a case too atypical on its facts to permit much generalization but which does appear to verify the implication of International Shoe that in personam jurisdiction may attach to a corporation even where the cause of action does not arise out of the business done by defendant in the forum state, as well as to state, in dictum, that the mere presence of a corporate official within the state on business of the corporation would suffice to create jurisdiction if the claim arose out of that business and service were made on him within the state. 342 U.S. at 444–45. The Court held that the state could, but was not required to, assert jurisdiction over a corporation owning gold and silver mines in the Philippines but temporarily (because of the Japanese occupation) carrying on a part of its general business in the forum state, including directors’ meetings, business correspondence, banking, and the like, although it owned no mining properties in the state.

⁹⁴⁴ McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957). An exception exists with respect to in personam jurisdiction in domestic relations cases, at least in some instances. E.g., Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957) (holding that sufficient contacts afforded Nevada in personam jurisdiction over a New York resident wife for purposes of dissolving the marriage but Nevada did not have jurisdiction to terminate the wife’s claims for support).

⁹⁴⁵ 357 U.S. 235 (1958). The decision was 5-to-4. See 357 U.S. at 256 (Justice Black dissenting), 262 (Justice Douglas dissenting).

⁹⁴⁶ 357 U.S. at 251. In dissent, Justice Black observed that “of course we have not reached the point where state boundaries are without significance and I do not mean to suggest such a view here.” 357 U.S. at 260.

⁹⁴⁷ 357 U.S. at 251, 253–54. Upon an analogy of choice of law and forum non conveniens, Justice Black argued that the relationship of the nonresident defendants and the subject of the litigation to the Florida made Florida the natural and constitutional basis for asserting jurisdiction. 357 U.S. at 251, 258–59. The Court has numerous times asserted that contacts sufficient for the purpose of designating a particular state’s law as appropriate may be insufficient for the purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Kulko v. Superior Court, 436 U.S. 84, 98 (1978); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294–95 (1980). On the due process limits on choice of law decisions, see Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).

⁹⁴⁸ Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as well that the forum state may apply “single publication rule” making defendant liable for nationwide damages).

⁹⁴⁹ Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction over reporter and editor responsible for defamatory article which they knew would be circulated in subject’s home state).

⁹⁵⁰ Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). But cf. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984) (purchases and training within state, both unrelated to cause of action, are insufficient to justify general in personam jurisdiction).

⁹⁵¹ 444 U.S. 286 (1980).

⁹⁵² 444 U.S. at 297.

⁹⁵³ 444 U.S. at 298.

⁹⁵⁴ 480 U.S. 102 (1987). In Asahi, a California resident sued, inter alia, a Taiwanese tire tube manufacturer for injuries caused by a blown-out motorcycle tire. After plaintiff and the tube manufacturer settled the case, which had been filed in California, the tube manufacturer sought indemnity in the California courts against Asahi Metal, the Japanese supplier of the tube’s valve assembly.

⁹⁵⁵ All the Justices also agreed that due process considerations foreclosed jurisdiction in Asahi, even though Asahi Metal could have foreseen that some of its valve assemblies would end up incorporated into tire tubes sold in the United States. Three of the Asahi Justices had been dissenters in World-Wide Volkswagen Corp. v. Woodson. Of the three dissenters, Justice Brennan had argued that the “minimum contacts” test was obsolete and that jurisdiction should be predicated upon the balancing of the interests of the forum state and plaintiffs against the actual burden imposed on defendant, 444 U.S. at 299, while Justices Marshall and Blackmun had applied the test and found jurisdiction because of the foreseeability of defendants that a defective product of theirs might cause injury in a distant state and because the defendants had entered into an interstate economic network. 444 U.S. at 313.

⁹⁵⁶ 480 U.S. at 109–113 (1987). Agreeing with Justice O’Connor on this test were Chief Justice Rehnquist and Justices Powell and Scalia.

⁹⁵⁷ 564 U.S. ___, No. 09–1343, slip op. (2011).

⁹⁵⁸ 564 U.S. ___, No. 09–1343, slip op. (2011) (Kennedy, Roberts, Scalia and Thomas).

⁹⁵⁹ 564 U.S. ___, No. 09–1343, slip op. (2011) (Breyer and Alito concurring).

⁹⁶⁰ Daimler AG v. Bauman, 571 U.S. ___, No. 11–965, slip op. at 8 (2014).

⁹⁶¹ Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 582 U.S. ___, No. 16–466, slip op. at 7 (2017).

⁹⁶² Id. at 7.

⁹⁶³ Id. A court may exercise “general” jurisdiction for any claim—even if all the incidents underlying the claim occurred in a different state—against an individual in that person’s domicile or against a corporation where the corporation is fairly regarded as “at home,” such as the company’s place of incorporation or headquarters. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919–24 (2011).

⁹⁶⁴ See Bristol-Myers Squibb Co., slip op. at 8.

⁹⁶⁵ Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a state court could proceed to judgment respecting the ownership of such property, even though it lacked a constitutional competence to reach claimants of title who resided beyond its borders. Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v. Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917).

⁹⁶⁶ Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850).

⁹⁶⁷ American Land Co. v. Zeiss, 219 U.S. 47 (1911); Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814 (Chief Justice Holmes), appeal dismissed, 179 U.S. 405 (1900).

⁹⁶⁸ Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889).

⁹⁶⁹ The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874).

⁹⁷⁰ Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S. 343 (1942).

⁹⁷¹ Pennoyer v. Neff, 95 U.S. 714 (1878). Predeprivation notice and hearing may be required if the property is not the sort that, given advance warning, could be removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (notice to owner required before seizure of house by government).

⁹⁷² Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907); Security Savings Bank v. California, 263 U.S. 282 (1923).

⁹⁷³ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); Walker v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v. City of New York, 371 U.S. 208 (1962); Robinson v. Hanrahan, 409 U.S. 38 (1972).

⁹⁷⁴ 433 U.S. 186 (1977).

⁹⁷⁵ 433 U.S. at 207–08 (footnotes omitted). The Court also suggested that the state would usually have jurisdiction in cases such as those arising from injuries suffered on the property of an absentee owner, where the defendant’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that controversy. Id.

⁹⁷⁶ 95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218, 222 (1930); Endicott Co. v. Encyclopedia Press, 266 U.S. 285, 288 (1924).

⁹⁷⁷ The theory was that property is always in possession of an owner, and that seizure of the property will inform him. This theory of notice was disavowed sooner than the theory of jurisdiction. See “Actions in Rem: Proceedings Against Property”, supra.

⁹⁷⁸ Other, quasi in rem actions, which are directed against persons, but ultimately have property as the subject matter, such as probate, Goodrich v. Ferris, 214 U.S. 71, 80 (1909), and garnishment of foreign attachment proceedings, Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk, 198 U.S. 215 (1905), might also be prosecuted to conclusion without requiring the presence of all parties in interest. The jurisdictional requirements for rendering a valid divorce decree are considered under the Full Faith and Credit Clause, Art. I, § 1.

⁹⁷⁹ Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960 (1957), appeal dismissed, 357 U.S. 569 (1958) (debt seized in California was owed to a New Yorker, but it had arisen out of transactions in California involving the New Yorker and the California plaintiff).

⁹⁸⁰ 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966).

⁹⁸¹ 198 U.S. 215 (1905).

⁹⁸² Compare New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916) (action purportedly against property within state, proceeds of an insurance policy, was really an in personam action against claimant and, claimant not having been served, the judgment is void). But see Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961).

⁹⁸³ 433 U.S. 186 (1977).

⁹⁸⁴ 433 U.S. at 207 (internal quotation from RESTATEMENT (SECOND)OF CONFLICT OF LAWS 56, Introductory Note (1971)).

⁹⁸⁵ 433 U.S. at 207. The characterization of actions in rem as being not actions against a res but against persons with interests merely reﬂects Justice Holmes’ insight in Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E., 812, 814, appeal dismissed, 179 U.S. 405 (1900).

⁹⁸⁶ 444 U.S. 320 (1980).

⁹⁸⁷ 444 U.S. at 328–30. In dissent, Justices Brennan and Stevens argued that what the state courts had done was the functional equivalent of direct-action statutes. Id. at 333 (Justice Stevens); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980) (Justice Brennan). The Court, however, refused so to view the Minnesota garnishment action, saying that “[t]he State’s ability to exert its power over the ‘nominal defendant’ is analytically prerequisite to the insurer’s entry into the case as a garnishee.” Id. at 330–31. Presumably, the comment is not meant to undermine the validity of such direct-action statutes, which was upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954), a choice-of-law case rather than a jurisdiction case.

⁹⁸⁸ See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir. 1978), cert. denied, 439 U.S. 1034 (1978).

⁹⁸⁹ Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558 (1912).

⁹⁹⁰ Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust Co., 315 U.S. 343 (1942).

⁹⁹¹ 315 U.S. at 353.

⁹⁹² 357 U.S. 235 (1957).

⁹⁹³ The in personam aspect of this decision is considered supra.

⁹⁹⁴ She reserved the power to appoint the remainder, after her reserved life estate, either by testamentary disposition or by inter vivos instrument. After she moved to Florida, she executed a new will and a new power of appointment under the trust, which did not satisfy the requirements for testamentary disposition under Florida law. Upon her death, dispute arose as to whether the property passed pursuant to the terms of the power of appointment or in accordance with the residuary clause of the will.

⁹⁹⁵ 357 U.S. at 246.

⁹⁹⁶ 357 U.S. at 247–50. The four dissenters, Justices Black, Burton, Brennan, and Douglas, believed that the transfer in Florida of $400,000 made by a domiciliary and affecting beneficiaries, almost all of whom lived in that state, gave rise to a sufficient connection with Florida to support an adjudication by its courts of the effectiveness of the transfer. 357 U.S. at 256, 262.

⁹⁹⁷ See discussion of Pennoyer, supra.

⁹⁹⁸ Hamilton v. Brown, 161 U.S. 256 (1896); Security Savings Bank v. California, 263 U.S. 282 (1923). See also Voeller v. Neilston Co., 311 U.S. 531 (1941).

⁹⁹⁹ 339 U.S. 306 (1950).

¹⁰⁰⁰ A related question is which state has the authority to escheat a corporate debt. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v. New Jersey, 379 U.S. 674 (1965). Where a state seeks to escheat intangible corporate property such as uncollected debt, the Court found that the multiplicity of states with a possible interest made a “contacts” test unworkable. Citing ease of administration rather than logic or jurisdiction, the Court held that the authority to take the uncollected claims against a corporation by escheat would be based on whether the last known address on the company’s books for the each creditor was in a particular state.

¹⁰⁰¹ “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 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “There . . . must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.” Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97 (1987).

¹⁰⁰² McDonald v. Mabee, 243 U.S. 90, 92 (1971).

¹⁰⁰³ Greene v. Lindsey, 456 U.S. 444, 449 (1982). See Dusenbery v. United States, 534 U.S. 161 (2001) (upholding a notice of forfeiture that was delivered by certified mail to the mailroom of a prison where the individual to be served was incarcerated, even though the individual himself did not sign for the letter).

¹⁰⁰⁴ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. And, in Greene v. Lindsey, 456 U.S. 444 (1982), the Court held that, in light of substantial evidence that notices posted on the doors of apartments in a housing project in an eviction proceeding were often torn down by children and others before tenants ever saw them, service by posting did not satisfy due process. Without requiring service by mail, the Court observed that the mails “provide an ‘efficient and inexpensive means of communication’ upon which prudent men will ordinarily rely in the conduct of important affairs.” Id. at 455 (citations omitted). See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal service or notice by mail is required for mortgagee of real property subject to tax sale, Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (notice by mail or other appropriate means to reasonably ascertainable creditors of probated estate).

¹⁰⁰⁵ E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers Health Ass’n ex rel. State Corp. Comm’n, 339 U.S. 643 (1950).

¹⁰⁰⁶ See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409–12 (1982) (discussing New Jersey’s “long-arm” rule, under which a plaintiff must make every effort to serve process upon someone within the state and then, only if “after diligent inquiry and effort personal service cannot be made” within the state, “service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.”). Cf. Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980), vacated and remanded, 455 U.S. 985 (1982).

¹⁰⁰⁷ Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

¹⁰⁰⁸ E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured).

¹⁰⁰⁹ Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900). A state “is free to regulate procedure of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176, (1912). The power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts is also subject to restrictions imposed by the Contract, Full Faith and Credit, and Privileges and Immunities Clauses of the Constitution. Angel v. Bullington, 330 U.S. 183 (1947).

¹⁰¹⁰ Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Central Ry. v. Iowa, 160 U.S. 389, 393 (1896); Honeyman v. Hanan, 302 U.S. 375 (1937). See also Lindsey v. Normet, 405 U.S. 56 (1972).

¹⁰¹¹ Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904).

¹⁰¹² Some recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. While this is more generally true in the context of criminal cases, in which the appellate process and post-conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v. Normet, 405 U.S. 56, 74–79 (1972); Santosky v. Kramer, 455 U.S. 745 (1982). Review has, however, been restrained with regard to details. See, e.g., Lindsey v. Normet, 405 U.S. at 64–69.

¹⁰¹³ Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the Fourteenth Amendment does not constrain the states to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to amend pleadings. Note that the Supreme Court did once grant review to determine whether due process required the states to provide some form of post-conviction remedy to assert federal constitutional violations, a review that was mooted when the state enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965). When a state, however, through its legal system exerts a monopoly over the pacific settlement of private disputes, as with the dissolution of marriage, due process may well impose affirmative obligations on that state. Boddie v. Connecticut, 401 U.S. 371, 374–77 (1971).

¹⁰¹⁴ Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Nor did the retroactive application of this statutory requirement to actions pending at the time of its adoption violate due process as long as no new liability for expenses incurred before enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished.

¹⁰¹⁵ Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody).

¹⁰¹⁶ Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938).

¹⁰¹⁷ Jones v. Union Guano Co., 264 U.S. 171 (1924).

¹⁰¹⁸ Sawyer v. Piper, 189 U.S. 154 (1903).

¹⁰¹⁹ Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).

¹⁰²⁰ Lindsey v. Normet, 405 U.S. 56, 64–69 (1972). See also Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of a mortgage without allowing any defense except payment)..

¹⁰²¹ Bowersock v. Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co., 283 U.S. 91 (1931). See also Martinez v. California, 444 U.S. 277, 280–83 (1980) (state interest in fashioning its own tort law permits it to provide immunity defenses for its employees and thus defeat recovery).

¹⁰²² Ownbey v. Morgan, 256 U.S. 94 (1921).

¹⁰²³ Ballard v. Hunter, 204 U.S. 241, 259 (1907).

¹⁰²⁴ Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914).

¹⁰²⁵ Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error in the proceedings that presence of attorneys would sharply diminish). See also United States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements).

¹⁰²⁶ Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose costs on acquitted defendant, but containing no standards to guide discretion, violates due process).

¹⁰²⁷ Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43–44 (1922); Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921); Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).

¹⁰²⁸ Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).

¹⁰²⁹ National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to safeguard the value of the judgment pending decision on appeal).

¹⁰³⁰ Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).

¹⁰³¹ Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).

¹⁰³² Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive damages awarded by a jury).

¹⁰³³ Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989).

¹⁰³⁴ BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996) (holding that a $2 million judgment for failing to disclose to a purchaser that a “new” car had been repainted was grossly excessive in relation to the state’s interest, as only a few of the 983 similarly repainted cars had been sold in that same state); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that a $145 million judgment for refusing to settle an insurance claim was excessive as it included consideration of conduct occurring in other states). But see TXO Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title does not violate the Due Process Clause even though the jury awarded actual damages of only $19,000).

¹⁰³⁵ BMW v. Gore, 517 U.S. at 574–75 (1996). The Court has suggested that awards exceeding a single-digit ratio between punitive and compensatory damages would be unlikely to pass scrutiny under due process, and that the greater the compensatory damages, the less this ratio should be. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 424 (2003).

¹⁰³⁶ Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).

¹⁰³⁷ Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (discussing discretion of states in erecting reasonable procedural requirements for triggering or foreclosing the right to an adjudication).

¹⁰³⁸ Blinn v. Nelson, 222 U.S. 1 (1911).

¹⁰³⁹ Turner v. New York, 168 U.S. 90, 94 (1897).

¹⁰⁴⁰ Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of property without due process.

¹⁰⁴¹ Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).

¹⁰⁴² Campbell v. Holt, 115 U.S. 620, 623, 628 (1885).

¹⁰⁴³ Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).

¹⁰⁴⁴ Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).

¹⁰⁴⁵ Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 U.S. 403, 417 (1935).

¹⁰⁴⁶ Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).

¹⁰⁴⁷ Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress’s power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966).

¹⁰⁴⁸ Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)).

¹⁰⁴⁹ Mathews v. Eldridge, 424 U.S. 319 (1976).

¹⁰⁵⁰ Addington v. Texas, 441 U.S. 418 (1979).

¹⁰⁵¹ Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices dissented, arguing that considered as a whole the statutory scheme comported with due process. Id. at 770 (Justices Rehnquist, White, O’Connor, and Chief Justice Burger). Application of the traditional preponderance of the evidence standard is permissible in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987).

¹⁰⁵² Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her husband defeats the right of the child’s biological father to establish paternity.

¹⁰⁵³ Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle).

¹⁰⁵⁴ Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).

¹⁰⁵⁵ The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm’n, 284 U.S. 206 (1931).

¹⁰⁵⁶ 405 U.S. 645 (1972).

¹⁰⁵⁷ Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

¹⁰⁵⁸ Vlandis v. Kline, 412 U.S. 441 (1973).

¹⁰⁵⁹ Department of Agriculture v. Murry, 413 U.S. 508 (1973).

¹⁰⁶⁰ Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

¹⁰⁶¹ 422 U.S. 749 (1975).

¹⁰⁶² Stanley and LaFleur were distinguished as involving fundamental rights of family and childbearing, 422 U.S. at 771, and Murry was distinguished as involving an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court, meant no more than that when a state fixes residency as the qualification it may not deny to one meeting the test of residency the opportunity so to establish it. Id. at 771. But see id. at 802–03 (Justice Brennan dissenting).

¹⁰⁶³ 422 U.S. at 768–70, 775–77, 785 (using Dandridge v. Williams, 397 U.S. 471 (1970); Richardson v. Belcher, 404 U.S. 78 (1971); and similar cases).

¹⁰⁶⁴ Weinberger v. Salfi, 422 U.S. 749, 772 (1975).

¹⁰⁶⁵ Vlandis, which was approved but distinguished, is only marginally in this doctrinal area, involving as it does a right to travel feature, but it is like Salfi and Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S. 647, 658–62 (1978).

¹⁰⁶⁶ In Turner v. Department of Employment Security, 423 U.S. 44 (1975), decided after Salfi, the Court voided under the doctrine a statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282, 284–85 (1979) (Congress must fix general categorization; case-by-case determination would be prohibitively costly).

¹⁰⁶⁷ Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243 U.S. 188, 208 (1917).

¹⁰⁶⁸ Marvin v. Trout, 199 U.S. 212, 226 (1905).

¹⁰⁶⁹ In re Delgado, 140 U.S. 586, 588 (1891).

¹⁰⁷⁰ Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 201, 206 (1884).

¹⁰⁷¹ Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).

¹⁰⁷² Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894).

¹⁰⁷³ See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).

¹⁰⁷⁴ See Maxwell v. Dow, 176 U.S. 581, 602 (1900).

¹⁰⁷⁵ Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).

¹⁰⁷⁶ 405 U.S. at 74–79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party who unsuccessfully appeals from money judgment meets rational basis test under equal protection challenge, since it applies to plaintiffs and defendants alike and does not single out one class of appellants).

¹⁰⁷⁷ See analysis under the Bill of Rights, “Fourteenth Amendment,” supra.

¹⁰⁷⁸ For instance, In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt in criminal cases, such proof is required by due process. For other recurrences to general due process reasoning, as distinct from reliance on more specific Bill of Rights provisions, see, e.g., United States v. Bryant, 579 U.S. ___, No. 15–420, slip op. at 15–16 (2016) (holding that principles of due process did not prevent a defendant’s prior uncounseled convictions in tribal court from being used as the basis for a sentence enhancement, as those convictions complied with the Indian Civil Rights Act, which itself contained requirements that “ensure the reliability of tribal-court convictions”). See also Hicks v. Oklahoma, 447 U.S. 343 (1980) (where sentencing enhancement scheme for habitual offenders found unconstitutional, defendant’s sentence cannot be sustained, even if sentence falls within range of unenhanced sentences); Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions in jury instruction may not be used to shift burden of proof of an element of crime to defendant); Kentucky v. Whorton, 441 U.S. 786 (1979) (fairness of failure to give jury instruction on presumption of innocence evaluated under totality of circumstances); Taylor v. Kentucky, 436 U.S. 478 (1978) (requiring, upon defense request, jury instruction on presumption of innocence); Patterson v. New York, 432 U.S. 197 (1977) (defendant may be required to bear burden of affirmative defense); Henderson v. Kibbe, 431 U.S. 145 (1977) (sufficiency of jury instructions); Estelle v. Williams, 425 U.S. 501 (1976) (a state cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes); Mullaney v. Wilbur, 421 U.S. 684 (1975) (defendant may not be required to carry the burden of disproving an element of a crime for which he is charged); Wardius v. Oregon, 412 U.S. 470 (1973) (defendant may not be held to rule requiring disclosure to prosecution of an alibi defense unless defendant is given reciprocal discovery rights against the state); Chambers v. Mississippi, 410 U.S. 284 (1973) (defendant may not be denied opportunity to explore confession of third party to crime for which defendant is charged).

¹⁰⁷⁹ Justice Black thought the Fourteenth Amendment should be limited to the specific guarantees found in the Bill of Rights. See,e.g.,In re Winship, 397 U.S. 358, 377 (1970) (dissenting). For Justice Harlan’s response, see id. at 372 n.5 (concurring).

¹⁰⁸⁰ Twining v. New Jersey, 211 U.S. 78, 106 (1908). The question is phrased as whether a claimed right is “implicit in the concept of ordered liberty,” whether it partakes “of the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), or whether it “offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses,” Rochin v. California, 342 U.S. 165, 169 (1952).

¹⁰⁸¹ Duncan v. Louisiana, 391 U.S. 145, 149–50 n.14 (1968).

¹⁰⁸² Hurtado v. California, 110 U.S. 516 (1884). The Court has also rejected an argument that due process requires that criminal prosecutions go forward only on a showing of probable cause. Albright v. Oliver, 510 U.S. 266 (1994) (holding that there is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

¹⁰⁸³ Smith v. O’Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented by counsel to what prosecution represented as a charge of simple burglary but which was in fact a charge of “burglary with explosives” carrying a much lengthier sentence voided). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant guilty under a section of the statute not charged violated due process); In re Ruffalo, 390 U.S. 544 (1968) (disbarment in proceeding on charge which was not made until after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313 (1972) (affirmance of obscenity conviction because of the context in which a movie was shown— grounds neither covered in the statute nor listed in the charge—was invalid).

¹⁰⁸⁴ See Sixth Amendment, Notice of Accusation, supra.

¹⁰⁸⁵ Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Hernandez v. Texas, 347 U.S. 475 (1954); Pierre v. Louisiana, 306 U.S. 354 (1939). On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962).

¹⁰⁸⁶ Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

¹⁰⁸⁷ Musser v. Utah, 333 U.S. 95, 97 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.” Id. at 97. “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982).

¹⁰⁸⁸ Winters v. New York, 333 U.S. 507, 515–16 (1948). “The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable test to ascertain guilt.” Id. Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972). Thus, a state statute imposing severe, cumulative punishments upon contractors with the state who pay their workers less than the “current rate of per diem wages in the locality where the work is performed” was held to be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Const. Co., 269 U.S. 385 (1926). Similarly, a statute which allowed jurors to require an acquitted defendant to pay the costs of the prosecution, elucidated only by the judge’s instruction to the jury that the defendant should only have to pay the costs if it thought him guilty of “some misconduct” though innocent of the crime with which he was charged, was found to fall short of the requirements of due process. Giaccio v. Pennsylvania, 382 U.S. 399 (1966).

¹⁰⁸⁹ See United States v. Beckles, 580 U.S. ___, No. 15–8544, slip op. at 5 (2017).

¹⁰⁹⁰ See Kolender v. Lawson, 461 U.S. 352, 357 (1983).

¹⁰⁹¹ Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953).

¹⁰⁹² Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940).

¹⁰⁹³ 405 U.S. 156 (1972).

¹⁰⁹⁴ 405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been expressed previously. See,e.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting).

¹⁰⁹⁵ Similarly, an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under statute imposing penalty for failure to “move on” voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in at a drugstore lunch counter voided since the trespass statute did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so); Kolender v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry stop provide “credible and reliable” identification is facially void as encouraging arbitrary enforcement).

¹⁰⁹⁶ Where the terms of a vague statute do not threaten a constitutionally protected right, and where the conduct at issue in a particular case is clearly proscribed, then a due process challenge is unlikely to be successful. Where the conduct in question is at the margins of the meaning of an unclear statute, however, it will be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963).

¹⁰⁹⁷ Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 494–95 (1982).

¹⁰⁹⁸ 402 U.S. 544 (1971).

¹⁰⁹⁹ Kolender v. Lawson, 461 U.S. 352, 358 (1983).

¹¹⁰⁰ City of Chicago v. Morales, 527 U.S. 41 (1999).

¹¹⁰¹ 527 U.S. at 62.

¹¹⁰² Colten v. Kentucky, 407 U.S. 104 (1972).

¹¹⁰³ See, e.g., McDonnell v. United States, 579 U.S. ___, No. 15–474, slip op. at 23 (2016) (narrowly interpreting the term “official act” to avoid a construction of the Hobbs Act and federal honest-services fraud statute that would allow public officials to be subject to prosecution without fair notice “for the most prosaic interactions” between officials and their constituents).

¹¹⁰⁴ Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940).

¹¹⁰⁵ E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by a novel application of a statute, not supported by Supreme Court or other “fundamentally similar” case precedent, so long as the court can find that, under the circumstance, “unlawfulness . . . is apparent” to the defendant. United States v. Lanier, 520 U.S. 259, 271–72 (1997).

¹¹⁰⁶ E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101–03 (1945) (plurality opinion). The Court have even done so when the statute did not explicitly include such a mens rea requirement. E.g., Morissette v. United States, 342 U.S. 246 (1952).

¹¹⁰⁷ See, e.g., Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering.). In Lambert, the Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id. at 228, 229–30.

¹¹⁰⁸ 532 U.S. 451 (2001).

¹¹⁰⁹ Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

¹¹¹⁰ In United States v. Beckles, the Supreme Court concluded that the federal sentencing guidelines “do not fix the permissible range of sentences” and, therefore, are not subject to a vagueness challenge under the Due Process Clause. See 580 U.S. ___, No. 15–8544, slip op. at 5 (2017). Rather, the sentencing guidelines “merely guide the district courts’ discretion.” Id. at 8. In so concluding, the Court noted that the sentencing system that predated the use of the guidelines gave nearly unfettered discretion to judges in sentencing, and that discretion was never viewed as raising similar concerns. Id. Thus, the Court reasoned that it was “difficult to see how the present system of guided discretion” could raise vagueness concerns. Id. Moreover, the Beckles Court explained that “the advisory Guidelines . . . do not implicate the twin concerns underlying [the] vagueness doctrine—providing notice and preventing arbitrary enforcement.” Id. According to the Court, the only notice that is required regarding criminal sentences is provided to the defendant by the applicable statutory range and the guidelines. Further, the guidelines, which serve to advise courts how to exercise their discretion within the bounds set by Congress, simply do not regulate any conduct that can be arbitrarily enforced against a criminal defendant. Id. at 9.

¹¹¹¹ See United States v. Batchelder, 442 U.S. 114, 123 (1979).

¹¹¹² See, e.g., Sykes v. United States, 564 U.S. 1 (2011); Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007).

¹¹¹³ See Johnson v. United States, 576 U.S. ___, No. 13–7120, slip op. (2015).

¹¹¹⁴ See 18 U.S.C. § 924(e)(2)(B) (2012).

¹¹¹⁵ Johnson, slip op. at 2–3.

¹¹¹⁶ See James, 550 U.S. at 208.

¹¹¹⁷ Johnson, slip op. at 5–6.

¹¹¹⁸ Id.

¹¹¹⁹ See id. at 6–10 (“Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.”).

¹¹²⁰ Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, or informers may be used, which also has constitutional implications.

¹¹²¹ For instance, in Sorrells v. United States, 287 U.S. 435, 446–49 (1932) and Sherman v. United States, 356 U.S. 369, 380 (1958) government agents solicited defendants to engage in the illegal activity, in United States v. Russell, 411 U.S. 423, 490 (1973), the agents supplied a commonly available ingredient, and in Hampton v. United States, 425 U.S. 484, 488–89 (1976), the agents supplied an essential and difficult to obtain ingredient.

¹¹²² For instance, this strategy was seen in the “Abscam” congressional bribery controversy. The defense of entrapment was rejected as to all the “Abscam” defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982), cert. denied, 457 U.S. 1106 (1982).

¹¹²³ For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 SUP. CT. REV. 111. The Court’s first discussion of the issue was based on statutory grounds, see Sorrells v. United States, 287 U.S. 435, 446–49 (1932), and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488–89 (1976) (plurality opinion of Justices Rehnquist and White and Chief Justice Burger). In Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring), however, Justice Frankfurter based his opinion on the supervisory powers of the courts. In United States v. Russell, 411 U.S. 423, 490 (1973), however, the Court rejected the use of that power, as did a plurality in Hampton, 425 U.S. at 490. The Hampton plurality thought the Due Process Clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never do that. Justices Powell and Blackmun, on the other hand, 411 U.S. at 491, thought that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due process but seemed to believe that both were implicated. 411 U.S. at 495 (Justices Brennan, Stewart, and Marshall); Russell, 411 U.S. at 439 (Justices Stewart, Brennan, and Marshall). The Court again failed to clarify the basis for the defense in Mathews v. United States, 485 U.S. 58 (1988) (a defendant in a federal criminal case who denies commission of the crime is entitled to assert an “inconsistent” entrapment defense where the evidence warrants), and in Jacobson v. United States, 503 U.S. 540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because government solicitation induced the defendant to purchase child pornography).

¹¹²⁴ An “objective approach,” although rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the state legislatures. See American Law Institute, MODEL PENAL CODE § 2.13 (Official Draft, 1962); NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, A PROPOSED NEW FEDERAL CRIMINAL CODE § 702(2) (Final Draft, 1971). The objective approach disregards the defendant’s predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense would be available. Sorrells v. United States, 287 U.S. 435, 458–59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496–97 (1976) (Justice Brennan dissenting).

¹¹²⁵ Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Here the Court held that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover “sting” operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight censorship and stand up for individual rights.

¹¹²⁶ Sorrells v. United States, 287 U.S. 435, 451–52 (1932); Sherman v. United States, 356 U.S. 369, 376–78 (1958); Masciale v. United States, 356 U.S. 386, 388 (1958); United States v. Russell, 411 U.S. 423, 432–36 (1973); Hampton v. United States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun concurring).

¹¹²⁷ Jacobson v. United States, 503 U.S. 540, 553–54 (1992).

¹¹²⁸ A hearing by the trial judge on whether an eyewitness identification should be barred from admission is not constitutionally required to be conducted out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).

¹¹²⁹ E.g., Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) (only one photograph provided to witness); Neil v. Biggers, 409 U.S. 188, 196–201 (1972) (showup in which police walked defendant past victim and ordered him to speak); Coleman v. Alabama, 399 U.S. 1 (1970) (lineup); Foster v. California, 394 U.S. 440 (1969) (two lineups, in one of which the suspect was sole participant above average height, and arranged one-on-one meeting between eyewitness and suspect); Simmons v. United States, 390 U.S. 377 (1968) (series of group photographs each of which contained suspect); Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought to witness’s hospital room).

¹¹³⁰ Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. (2012) (prior to being approached by police for questioning, witness by chance happened to see suspect standing in parking lot near police officer; no manipulation by police alleged).

¹¹³¹ See Perry v. New Hampshire, 565 U.S. ___, No. 10–8974, slip op. at 6–7, 15–17 (2012).

¹¹³² “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188, 198 (1972). An identification process can be found to be suggestive regardless of police intent. Perry v. New Hampshire, 565 U.S. ___, No. 10– 8974, slip op. at 2 & n.1 (2012) (circumstances of identification found to be suggestive but not contrived; no due process relief). The necessity of using a particular procedure depends on the circumstances. E.g., Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought handcuffed to sole witness’s hospital room where it was uncertain whether witness would survive her wounds).

¹¹³³ Neil v. Biggers, 409 U.S. 188, 196–201 (1972); Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977). The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall v. Denno, 388 U.S. 293 (1967).

¹¹³⁴ The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall. 388 U.S. 293, 302 (1967). In Manson v. Brathwaite, the Court evaluated application of a per se rule versus the more ﬂexible, ad hoc “totality of the circumstances” rule, and found the latter to be preferable in the interests of deterrence and the administration of justice. 432 U.S. 98, 111–14 (1977). The rule in due process cases differs from the per se exclusionary rule adopted in the Wade-Gilbert line of cases on denial of the right to counsel under the Sixth Amendment in subject Illinois, 406 U.S. 682 (1972) (right to counsel inapplicable to post-arrest police station identification made before formal initiation of criminal proceedings; due process protections remain available) and United States v. Ash, 413 U.S. 300 (1973) (right to counsel inapplicable at post-indictment display of photographs to prosecution witnesses out of defendant’s presence; record insufficient to assess possible due process claim).

¹¹³⁵ Foster v. California, 394 U.S. 440 (1969) (5–4) (“[T]he pretrial confrontations [between the witness and the defendant] clearly were so arranged as to make the resulting identifications virtually inevitable.”). In a limited class of cases, pretrial identifications have been found to be constitutionally objectionable on a basis other than due process. See discussion of Assistance of Counsel under Amend. VI, “Lineups and Other Identification Situations.”

¹¹³⁶ Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943).

¹¹³⁷ Lisenba v. California, 314 U.S. 219, 236 (1941).

¹¹³⁸ 273 U.S. 510, 520 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Similarly, in Rippo v. Baker, the Supreme Court vacated the Nevada Supreme Court’s denial of a convicted petitioner’s application for post-conviction relief based on the trial judge’s failure to recuse himself. 580 U.S. ___, No. 16–6316, slip op. (2017). During Rippo’s trial, the trial judge was the target of a federal bribery probe by the same district attorney’s office that was prosecuting Rippo. Rippo moved for the judge’s disqualification under the Fourteenth Amendment’s Due Process Clause, arguing the “judge could not impartially adjudicate a case in which one of the parties was criminally investigating him.” Id. at 1. After the judge was indicted on federal charges, a different judge subsequently assigned to the case denied Rippo’s motion for a new trial. In vacating the Nevada Supreme Court’s decision, the Supreme Court noted that “[u]nder our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘ha[s] no actual bias.’ Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id. at 2 (quoting Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 825 (1986); Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse).

¹¹³⁹ Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) (“it is generally wise where the marks of unseemly conduct have left personal stings [for a judge] to ask a fellow judge to take his place”); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where “marked personal feelings were present on both sides,” a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (“We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority”). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

¹¹⁴⁰ Ordinarily the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury). But, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant’s right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal record, if the jury has been given a sentencing function to increase the sentence which would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra.

¹¹⁴¹ Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923).

¹¹⁴² Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975).

¹¹⁴³ Initially, the televising of certain trials was struck down on the grounds that the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted inﬂuence of television upon the conduct of witnesses, that the judge’s ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381 U.S. 532 (1965). Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not altogether preclude the televising of state criminal trials. Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but Justices Stewart and White concurred on the basis that Estes had established a per se constitutional rule which had to be overruled, id. at 583, 586, contrary to the Court’s position. Id. at 570–74.

¹¹⁴⁴ For instance, the presumption of innocence has been central to a number of Supreme Court cases. Under some circumstances it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence, although the burden on the defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (reiterating that the totality of the circumstances must be looked to in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting the jury to consider the defendant’s prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s death that “law presumes that a person intends the ordinary consequences of his voluntary acts” denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event state would not have carried its burden of proving guilt). See also Cupp v. Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1973). For other cases applying Sandstrom,see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state’s burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)); Middleton v. McNeil, 541 U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other instructions made correct standard clear). Similarly, improper arguments by a prosecutor do not necessarily constitute “plain error,” and a reviewing court may consider in the context of the entire record of the trial the trial court’s failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).

¹¹⁴⁵ Rock v. Arkansas, 483 U.S. 44 (1987).

¹¹⁴⁶ Wardius v. Oregon, 412 U.S. 470 (1973).

¹¹⁴⁷ Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation); Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of private-actor courtroom conduct—in this case, members of victim’s family wearing buttons with the victim’s photograph—has never been addressed by the Supreme Court and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences).

¹¹⁴⁸ 544 U.S. 622 (2005).

¹¹⁴⁹ 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in dictum, that “no person should be tried while shackled and gagged except as a last resort.”

¹¹⁵⁰ 544 U.S. at 630, 631 (internal quotation marks omitted).

¹¹⁵¹ The defendant called the witness because the prosecution would not.

¹¹⁵² Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 786 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of third-party guilt can be excluded if there is strong forensic evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea).

¹¹⁵³ North v. Russell, 427 U.S. 328 (1976).

¹¹⁵⁴ Mooney v. Holohan, 294 U.S. 103, 112 (1935).

¹¹⁵⁵ The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied, 305 U.S. 598 (1938).

¹¹⁵⁶ Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941).

¹¹⁵⁷ Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated).

¹¹⁵⁸ 386 U.S. 1 (1967).

¹¹⁵⁹ The Constitution does not require the government, prior to entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United States v. Ruiz, 536 U.S. 622 (2002). Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting).

¹¹⁶⁰ 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500.

¹¹⁶¹ Although the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The defendant’s appeal of this latter decision was rejected, as the issue, as the Court saw it, was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged.

¹¹⁶² Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 556 U.S. ___, No. 07–1114, slip op. at 23, 27 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence.

¹¹⁶³ 427 U.S. 97 (1976).

¹¹⁶⁴ 427 U.S. at 103–04. This situation is the Mooney v. Holohan-type of case.

¹¹⁶⁵ A statement by the prosecution that it will “open its files” to the defendant appears to relieve the defendant of his obligation to request such materials. See Strickler v. Greene, 527 U.S. 263, 283–84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

¹¹⁶⁶ 427 U.S. at 104–06. This the Brady situation.

¹¹⁶⁷ 427 U.S. at 106–14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples that have been used in a breath-analysis test; to meet the Agurs materiality standard, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police); Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of cocaine 11 years after an arrest, the defendant having ﬂed prosecution during the intervening years, does not violate due process).

¹¹⁶⁸ 473 U.S. 667 (1985).

¹¹⁶⁹ 473 U.S. at 682. Or, to phrase it differently, a Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995). Accord Smith v. Cain, 565 U.S. ___, No. 10–8145, slip op. (2012) (prior inconsistent statements of sole eyewitness withheld from defendant; state lacked other evidence sufficient to sustain confidence in the verdict independently).

¹¹⁷⁰ See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel).

¹¹⁷¹ 473 U.S. at 676–77. See also Wearry v. Cain, 577 U.S. ___, No. 14–10008, slip op. at 9 (2016) (per curiam) (finding that a state post-conviction court had improperly (1) evaluated the materiality of each piece of evidence in isolation, rather than cumulatively; (2) emphasized reasons jurors might disregard the new evidence, while ignoring reasons why they might not; and (3) failed to consider the statements of two impeaching witnesses).

¹¹⁷² Strickler v. Greene, 527 U.S. 263, 296 (1999); see also Turner v. United States, 582 U.S. ___, No. 15–1503, slip op. at 12 (2017) (holding that, when considering the withheld evidence in the context of the entire record, the evidence was “too little, too weak, or too distant” from the central evidentiary issues in the case to meet Brady’s standards for materiality.)

¹¹⁷³ Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995).

¹¹⁷⁴ Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v. Randall, 357 U.S. 513, 525–26 (1958).

¹¹⁷⁵ In re Winship, 397 U.S. 358, 364 (1970). See Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the interrelationship of the reasonable doubt burden and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979).

¹¹⁷⁶ E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to a “substantial doubt,” and as requiring “a moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define “reasonable doubt” as requiring a “moral certainty” or as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.)

¹¹⁷⁷ Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S. 36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895), in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt.

¹¹⁷⁸ 397 U.S. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard.

¹¹⁷⁹ Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957).

¹¹⁸⁰ 443 U.S. 307 (1979).

¹¹⁸¹ Id. at 316, 18–19. See also Musacchio v. United States, 577 U.S. ___, No. 14–1095, slip op. (2016) (“When a jury finds guilt after being instructed on all elements of the charged crime plus one more element,” the fact that the government did not introduce evidence of the additional element—which was not required to prove the offense, but was included in the erroneous jury instruction—“does not implicate the principles that sufficiency review protects.”); Griffin v. United States, 502 U.S. 46 (1991) (general guilty verdict on a multiple-object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conviction, but is adequate to support conviction as to another object).

¹¹⁸² Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court remanded the cases to determine if the new interpretation was in effect at the time of the previous convictions, in which case those convictions would violate due process.

¹¹⁸³ 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

¹¹⁸⁴ The general notion of “burden of proof” can be divided into the “burden of production” (providing probative evidence on a particular issue) and a “burden of persuasion” (persuading the factfinder with respect to an issue by a standard such as proof beyond a reasonable doubt). Mullaney, 421 U.S. at 695 n.20.

¹¹⁸⁵ Rivera v. Delaware, 429 U.S. 877 (1976), dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a state from placing on the defendant the burden of proving insanity by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice Rehnquist and Chief Justice Burger concurring in Mullaney, 421 U.S. at 704, 705, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that the defense may be required to prove insanity beyond a reasonable doubt.

¹¹⁸⁶ 432 U.S. 197 (1977).

¹¹⁸⁷ Proving the defense would reduce a murder offense to manslaughter.

¹¹⁸⁸ The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal firearms case to prove her duress defense by a preponderance of evidence did not violate due process). In Dixon, the prosecution had the burden of proving all elements of two federal firearms violations, one requiring a “willful” violation (having knowledge of the facts that constitute the offense) and the other requiring a “knowing” violation (acting with knowledge that the conduct was unlawful). Although establishing other forms of mens rea (such as “malicious intent”) might require that a prosecutor prove that a defendant’s intent was without justification or excuse, the Court held that neither of the forms of mens rea at issue in Dixon contained such a requirement. Consequently, the burden of establishing the defense of duress could be placed on the defendant without violating due process.

¹¹⁸⁹ Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts that historically have made a substantial difference in the punishment and stigma ﬂowing from a criminal act the state always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. 432 U.S. at 216. Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design”). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240.

¹¹⁹⁰ 548 U.S. 735 (2006).

¹¹⁹¹ 548 U.S. at 770, 774.

¹¹⁹² McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these type of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may be evaluated by a judge. See discussion in “Criminal Proceedings to Which the Guarantee Applies,” supra.

¹¹⁹³ 530 U.S. 466, 490 (2000) (interpreting New Jersey’s “hate crime” law). It should be noted that, prior to its decision in Apprendi, the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi,McMillan was subsequently reaffirmed in Harris v. United States, 536 U.S. 545 (2002).

¹¹⁹⁴ Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).

¹¹⁹⁵ This limiting principle does not apply to sentencing enhancements based on recidivism. Apprendi, 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction).

¹¹⁹⁶ See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent).

¹¹⁹⁷ 319 U.S. 463, 467–68 (1943). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was “carrying on” or aiding in “carrying on” its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still).

¹¹⁹⁸ 395 U.S. 6, 36 (1969).

¹¹⁹⁹ subject disapproved, it was factually distinguished as involving users of “hard” narcotics.

¹²⁰⁰ 395 U.S. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the “rational connection” test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process).

¹²⁰¹ Ulster County Court v. Allen, 442 U.S. 140, 167 (1979).

¹²⁰² 442 U.S. at 167.

¹²⁰³ 442 U.S. at 142. The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. 442 U.S. at 168. See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction that, to dissenting Justices O’Connor and Stevens, id. at 75, seemed to direct the jury to draw the inference that evidence that a child had been “battered” in the past meant that the defendant, the child’s father, had necessarily done the battering).

¹²⁰⁴ Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). The standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Indiana v. Edwards, supra.

¹²⁰⁵ Pate v. Robinson, 383 U.S. 375, 378 (1966); see also Drope v. Missouri, 420 U.S. 162, 180 (1975) (noting the relevant circumstances that may require a trial court to inquire into the mental competency of the defendant). In Ake v. Oklahoma, the Court established that, when an indigent defendant’s mental condition is both relevant to the punishment and seriously in question, the state must provide the defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985). While the Court has not decided whether Ake requires that the state provide a qualified mental health expert who is available exclusively to the defense team, see McWilliams v. Dunn, 582 U.S. ___, No. 16–5294, slip op. at 13 (2017), a state nevertheless deprives an indigent defendant of due process when it provides a competent psychiatrist only to examine the defendant without also requiring that an expert provide the defense with help in evaluating, preparing, and presenting its case. Id. at 15.

¹²⁰⁶ Medina v. California, 505 U.S. 437 (1992). It is a violation of due process, however, for a state to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996).

¹²⁰⁷ Jackson v. Indiana, 406 U.S. 715 (1972).

¹²⁰⁸ Clark v. Arizona, 548 U.S. 735 (2006).

¹²⁰⁹ M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722.

¹²¹⁰ See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible”).

¹²¹¹ See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product of mental disease in him—he is not guilty; he is innocent—as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance”).

¹²¹² Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute, based on the M’Naghten case, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove the remaining moral incapacity test. Id. at 753.

¹²¹³ Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere idiosyncratic behavior.

¹²¹⁴ 463 U.S. at 368.

¹²¹⁵ 463 U.S. at 370.

¹²¹⁶ Foucha v. Louisiana, 504 U.S. 71 (1992).

¹²¹⁷ 477 U.S. 399 (1986).

¹²¹⁸ There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that “the ascertainment of a prisoner’s sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U.S. at 411– 12. Concurring Justice Powell thought that due process might be met by a proceeding “far less formal than a trial,” that the state “should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.” Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding.

¹²¹⁹ 477 U.S. at 416–17.

¹²²⁰ 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986). The Court quoted this language again in Schriro v. Smith, holding that “[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam). States, the Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional challenge.” Id.

¹²²¹ 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others).

¹²²² 539 U.S. 166 (2003).

¹²²³ For instance, if the defendant is likely to remain civilly committed absent medication, this would diminish the government’s interest in prosecution. 539 U.S. at 180.

¹²²⁴ There are a number of other reasons why a defendant may be willing to plead guilty. There may be overwhelming evidence against him or his sentence after trial will be more severe than if he pleads guilty.

¹²²⁵ United States v. Jackson, 390 U.S. 570 (1968).

¹²²⁶ North Carolina v. Alford, 400 U.S. 25 (1971); Parker v. North Carolina, 397 U.S. 790 (1970). See also Brady v. United States, 397 U.S. 742 (1970). A guilty plea will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21 (1974). The state can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283 (1975). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386 (1987).

¹²²⁷ Blackledge v. Allison, 431 U.S. 63, 71 (1977).

¹²²⁸ Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction).

¹²²⁹ Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and post-trial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to.

¹²³⁰ Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. “A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Id. at 645 n.13. However, this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel’s representations to the defendant. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was done by someone else, guilty plea to aggravated manslaughter was still valid, as such charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such plea bargain was not honored).

¹²³¹ Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984).

¹²³² In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned a sentence imposed on an uncounseled defendant by a judge who in reciting defendant’s record from the bench made several errors and facetious comments. “[W]hile disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.”

¹²³³ In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in accordance with a habitual offender statute that if it found defendant guilty of the offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and gave defendant 40 years. Subsequently, in another case, the habitual offender statute under which Hicks had been sentenced was declared unconstitutional, but Hicks’ conviction was affirmed on the basis that his sentence was still within the permissible range open to the jury. The Supreme Court reversed. Hicks was denied due process because he was statutorily entitled to the exercise of the jury’s discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence was only conjectural. On other due process restrictions on the determination of the applicability of recidivist statutes to convicted defendants, see Chewning v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas, 385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992).

¹²³⁴ Due process does not impose any limitation upon the sentence that a legislature may affix to any offense; that function is in the Eighth Amendment. Williams v. Oklahoma, 358 U.S. 576, 586–87 (1959). See also Collins v. Johnston, 237 U.S. 502 (1915). On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623 (1912); Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263 (1980).

¹²³⁵ 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959).

¹²³⁶ 430 U.S. 349 (1977).

¹²³⁷ In Gardner, the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in part on a confidential presentence report which he did not characterize or make available to defense or prosecution. Justices Stevens, Stewart, and Powell found that because death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must be made available to the defense. 430 U.S. at 357–61. All but one of the other Justices joined the result on various other bases. Justice Brennan without elaboration thought the result was compelled by due process, id. at 364, while Justices White and Blackmun thought the result was necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Marshall in a different manner. Id. at 365. Chief Justice Burger concurred only in the result, id. at 362, and Justice Rehnquist dissented. Id. at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death after judge’s and prosecutor’s actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).

¹²³⁸ 438 U.S. 41 (1978).

¹²³⁹ 438 U.S. at 49–52. See also United States v. Tucker, 404 U.S. 443, 446 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. § 3577.

¹²⁴⁰ See, e.g, Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where the Court required that before a juvenile court decided to waive jurisdiction and transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer’s report which formed the basis for the court’s decision. Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to have constitutionalized the language.

¹²⁴¹ 386 U.S. 605 (1967).

¹²⁴² 389 U.S. 128 (1967).

¹²⁴³ 512 U.S. 154 (1994). See also Lynch v. Arizona, 578 U.S. ___, No. 15–8366, slip op. at 3–4 (2016) (holding that the possibility of clemency and the potential for future “legislative reform” does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36 (2001) (amended South Carolina law still runs afoul of Simmons).

¹²⁴⁴ 530 U.S. 156 (2000).

¹²⁴⁵ North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was held to be nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973). When a state provides a two-tier court system in which one may have an expeditious and somewhat informal trial in an inferior court with an absolute right to trial de novo in a court of general criminal jurisdiction if convicted, the second court is not bound by the rule in Pearce, because the potential for vindictiveness and inclination to deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972). But see Blackledge v. Perry, 417 U.S. 21 (1974), discussed supra.

¹²⁴⁶ An intervening conviction on other charges for acts committed prior to the first sentencing may justify imposition of an increased sentence following a second trial. Wasman v. United States, 468 U.S. 559 (1984).

¹²⁴⁷ Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The Court concluded that the possibility of vindictiveness was so low because normally the jury would not know of the result of the prior trial nor the sentence imposed, nor would it feel either the personal or institutional interests of judges leading to efforts to discourage the seeking of new trials. Justices Stewart, Brennan, and Marshall thought the principle was applicable to jury sentencing and that prophylactic limitations appropriate to the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other grounds. Id. at 35. The Pearce presumption that an increased, judge-imposed second sentence represents vindictiveness also is inapplicable if the second trial came about because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134 (1986).

¹²⁴⁸ Alabama v. Smith, 490 U.S. 794 (1989).

¹²⁴⁹ McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz, 156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).

¹²⁵⁰ Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974).

¹²⁵¹ The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which it was deemed to violate both the Due Process and the Equal Protection Clauses for a state to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions. See analysis under “Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection—Generally,” infra.

¹²⁵² 237 U.S. 309, 335 (1915).

¹²⁵³ Moore v. Dempsey, 261 U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson, 318 U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238–39 (1949).

¹²⁵⁴ Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

¹²⁵⁵ Carter v. Illinois, 329 U.S. 173, 175–76 (1946).

¹²⁵⁶ In Case v. Nebraska, 381 U.S. 336 (1965) (per curiam), the Court had taken for review a case that raised the issue of whether a state could simply omit any corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the state in the interim enacted provisions for such process. Justices Clark and Brennan each wrote a concurring opinion.

¹²⁵⁷ Frank v. Mangum, 237 U.S. 309 (1915).

¹²⁵⁸ 261 U.S. 86 (1923).

¹²⁵⁹ 297 U.S. 278 (1936).

¹²⁶⁰ District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. ___, No. 08–6 (2009).

¹²⁶¹ 557 U.S. ___, No. 08–6, slip op. at 2.

¹²⁶² 557 U.S. ___, No. 08–6, slip op. at 20 (citation omitted). Justice Stevens, in a dissenting opinion joined by Justices Ginsburg and Breyer and in part by Justice Souter, concluded, “[T]here is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done in this case.” Id. at 17.

¹²⁶³ Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

¹²⁶⁴ Cf. In re Bonner, 151 U.S. 242 (1894).

¹²⁶⁵ Price v. Johnston, 334 U.S. 266, 285 (1948).

¹²⁶⁶ “There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).

¹²⁶⁷ Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (invalidating state prison mail censorship regulations).

¹²⁶⁸ Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981).

¹²⁶⁹ See Bell v. Wolfish, 441 U.S. 520, 535–40 (1979). Persons not yet convicted of a crime may be detained by the government upon the appropriate determination of probable cause, and the government is entitled to “employ devices that are calculated to effectuate [a] detention.” Id. at 537. Nonetheless, the Court has held that the Due Process Clause protects a pretrial detainee from being subject to conditions that amount to punishment, which can be demonstrated through (1) actions taken with the “express intent to punish” or (2) the use of restrictions or conditions on confinement that are not reasonably related to a legitimate goal. See Wolfish, 441 U.S. at 538, 561. More recently, the Court clarified the standard by which the due process rights of pretrial detainees are adjudged with respect to excessive force claims. Specifically, in Kingsley v. Hendrickson, the Court held that, in order for a pretrial detainee to prove an excessive force claim in violation of his due process rights, a plaintiff must show that an officer’s use of force was objectively unreasonable, depending on the facts and circumstances from the perspective of a reasonable officer on the scene, see 576 U.S. ___, No. 14–6368, slip op. at 6–7 (2015), aligning the due process excessive force analysis with the standard for excessive force claims brought under the Fourth Amendment. Cf. Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that a “free citizen’s claim that law enforcement officials used excessive force . . . [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard”). Liability for actions taken by the government in the context of a pretrial detainee due process lawsuit does not, therefore, turn on whether a particular officer subjectively knew that the conduct being taken was unreasonable. See Kingsley, slip op. at 1.

¹²⁷⁰ See “Prisons and Punishment,” supra.

¹²⁷¹ E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs).

¹²⁷² E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. North Carolina Prisoners’ Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972).

¹²⁷³ Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1978). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the state “enable [a] prisoner to discover grievances, and to litigate effectively”).

¹²⁷⁴ Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973).

¹²⁷⁵ Lee v. Washington, 390 U.S. 333 (1968). There was some question as to the standard to be applied to racial discrimination in prisons after Turner v. Saﬂey, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499 (2005), however, the Court held that discriminatory prison regulations would continue to be evaluated under a “strict scrutiny” standard, which requires that regulations be narrowly tailored to further compelling governmental interests. Id. at 509–13 (striking down a requirement that new or transferred prisoners at the reception area of a correctional facility be assigned a cellmate of the same race for up to 60 days before they are given a regular housing assignment).

¹²⁷⁶ 482 U.S. 78 (1987)

¹²⁷⁷ 482 U.S. at 89 (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child). See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation by unrelated children or children over which a prisoner’s parental rights have been terminated and visitation where a prisoner has violated rules against substance abuse).

¹²⁷⁸ For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to communicate through other visitors, by letter, or by phone. 539 U.S. at 135.

¹²⁷⁹ 482 U.S. at 90, 92.

¹²⁸⁰ Hudson v. Palmer, 468 U.S. 517, 526 (1984).

¹²⁸¹ 482 U.S. at 91.

¹²⁸² Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v. Rutherford, 468 U.S. 576 (1984) (holding also that needs of prison security support a rule denying pretrial detainees contact visits with spouses, children, relatives, and friends).

¹²⁸³ Hudson v. Palmer, 468 U.S. 517, 530 (1984).

¹²⁸⁴ Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that state tort law provided adequate postdeprivation remedies). But see Zinermon v. Burch, 494 U.S. 113 (1990) (availability of postdeprivation remedy is inadequate when deprivation is foreseeable, predeprivation process was possible, and official conduct was not “unauthorized”).

¹²⁸⁵ Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).

¹²⁸⁶ Sandin v. Conner, 515 U.S. 472, 484 (1995) (30-day solitary confinement not atypical “in relation to the ordinary incidents of prison life”).

¹²⁸⁷ 418 U.S. 539 (1974).

¹²⁸⁸ 418 U.S. at 557. This analysis, of course, tracks the interest analysis discussed under “The Interests Protected: Entitlements and Positivist Recognition,” supra.

¹²⁸⁹ 418 U.S. at 563.

¹²⁹⁰ 418 U.S. at 566. However, the Court later ruled that the reasons for denying an inmate’s request to call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real, 471 U.S. 491 (1985).

¹²⁹¹ 418 U.S. at 561–72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496–97 (1980), and id. at 497– 500 (Justice Powell concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).

¹²⁹² Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).

¹²⁹³ Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976).

¹²⁹⁴ Olim v. Wakinekona, 461 U.S. 238 (1983).

¹²⁹⁵ Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld Ohio’s multi-level review process, despite the fact that a prisoner was provided only summary notice as to the allegations against him, a limited record was created, the prisoner could not call witnesses, and reevaluation of the assignment only occurred at one 30-day review and then annually. Id. at 219–20.

¹²⁹⁶ Vitek v. Jones, 445 U.S. 480 (1980).

¹²⁹⁷ 494 U.S. 210 (1990).

¹²⁹⁸ Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that parole is not a constitutional right but instead is a “present” from government to the prisoner. In Escoe v. Zerbst, 295 U.S. 490 (1935), the Court’s premise was that as a matter of grace the parolee was being granted a privilege and that he should neither expect nor seek due process. Then-Judge Burger in Hyser v. Reed, 318 F.2d 225 (D.C. Cir.), cert. denied, 375 U.S. 957 (1963), reasoned that due process was inapplicable because the parole board’s function was to assist the prisoner’s rehabilitation and restoration to society and that there was no adversary relationship between the board and the parolee.

¹²⁹⁹ 389 U.S. 128 (1967).

¹³⁰⁰ 408 U.S. 471 (1972).

¹³⁰¹ 408 U.S. at 480, 482.

¹³⁰² 408 U.S. at 483.

¹³⁰³ 408 U.S. at 484–87.

¹³⁰⁴ 408 U.S. at 489.

¹³⁰⁵ Black v. Romano, 471 U.S. 606 (1985).

¹³⁰⁶ Bearden v. Georgia, 461 U.S. 660, 672 (1983).

¹³⁰⁷ Gagnon v. Scarpelli, 411 U.S. 778 (1973).

¹³⁰⁸ 442 U.S. 1 (1979). Justice Powell thought that creation of a parole system did create a legitimate expectancy of fair procedure protected by due process, but, save in one respect, he agreed with the Court that the procedure followed was adequate. Id. at 18. Justices Marshall, Brennan, and Stevens argued in dissent that the Court’s analysis of the liberty interest was faulty and that due process required more than the board provided. Id. at 22.

¹³⁰⁹ Following Greenholtz, the Court held in Board of Pardons v. Allen, 482 U.S. 369 (1987), that a liberty interest was created by a Montana statute providing that a prisoner “shall” be released upon certain findings by a parole board. Accord Swarthout v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) (per curiam).

¹³¹⁰ The Court in Greenholtz held that procedures designed to elicit specific facts were inappropriate under the circumstances, and minimizing the risk of error should be the prime consideration. This goal may be achieved by the board’s largely informal methods; eschewing formal hearings, notice, and specification of particular evidence in the record. The inmate in this case was afforded an opportunity to be heard and when parole was denied he was informed in what respects he fell short of qualifying. That afforded the process that was due. Accord Swarthout v. Cooke, 562 U.S. ___, 10–333, slip op. (2011) (per curiam).

¹³¹¹ Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). The mere existence of purely discretionary authority and the frequent exercise of it creates no entitlement. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van Curen, 454 U.S. 14 (1981). The former case involved not parole but commutation of a life sentence, commutation being necessary to become eligible for parole. The statute gave the Board total discretion to commute, but in at least 75% of the cases prisoner received a favorable action and virtually all of the prisoners who had their sentences commuted were promptly paroled. In Van Curen, the Court made express what had been implicit in Dumschat; the “mutually explicit understandings” concept under which some property interests are found protected does not apply to liberty interests. Van Curen is also interesting because there the parole board had granted the petition for parole but within days revoked it before the prisoner was released, upon being told that he had lied at the hearing before the board.

¹³¹² For analysis of the state laws as well as application of constitutional principles to juveniles, see SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM (2d ed. 2006).

¹³¹³ In re Gault, 387 U.S. 1, 12–29 (1967).

¹³¹⁴ 387 U.S. 1 (1967).

¹³¹⁵ “Ultimately, however, we confront the reality of that portion of the juvenile court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning— that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘a building with whitewashed walls, regimented routine and institutional hours . . . .’ Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide. In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the condition of being a boy does not justify a kangaroo court.” 387 U.S. at 27–28.

¹³¹⁶ 387 U.S. at 31–35. Justice Harlan concurred in part and dissented in part, id. at 65, agreeing on the applicability of due process but disagreeing with the standards of the Court. Justice Stewart dissented wholly, arguing that the application of procedures developed for adversary criminal proceedings to juvenile proceedings would endanger their objectives and contending that the decision was a backward step toward undoing the reforms instituted in the past. Id. at 78.

¹³¹⁷ Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re Gault, 387 U.S. 1, 30–31 (1967).

¹³¹⁸ In re Winship, 397 U.S. 358 (1970). Chief Justice Burger and Justice Stewart dissented, following essentially the Stewart reasoning in Gault. “The Court’s opinion today rests entirely on the assumption that all juvenile proceedings are ‘criminal prosecutions,’ hence subject to constitutional limitation. . . . What the juvenile court systems need is not more but less of the trappings of legal procedure and judicial formalism; the juvenile system requires breathing room and ﬂexibility in order to survive, if it can survive the repeated assaults from this Court.” Id. at 375, 376. Justice Black dissented because he did not think the reasonable doubt standard a constitutional requirement at all. Id. at 377.

¹³¹⁹ McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion was concurred in by a majority of the Justices. Justice Blackmun’s opinion of the Court, which was joined by Chief Justice Burger and Justices Stewart and White, reasoned that a juvenile proceeding was not “a criminal prosecution” within the terms of the Sixth Amendment, so that jury trials were not automatically required; instead, the prior cases had proceeded on a “fundamental fairness” approach and in that regard a jury was not a necessary component of fair factfinding and its use would have serious repercussions on the rehabilitative and protection functions of the juvenile court. Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice Brennan concurred in one case and dissented in another because in his view open proceedings would operate to protect juveniles from oppression in much the same way as a jury would. Id. at 553. Justice Harlan concurred because he did not believe jury trials were constitutionally mandated in state courts. Id. at 557. Justices Douglas, Black, and Marshall dissented. Id. at 557.

¹³²⁰ Fare v. Michael C., 442 U.S. 707, 725 (1979).

¹³²¹ New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the search of a student’s purse to determine whether the student possessed cigarettes in violation of school rule; evidence of drug activity held admissible in a prosecution under the juvenile laws). In Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08– 479 (2009), the Court found unreasonable a strip search of a 13-year-old girl suspected of possessing ibuprofen. See Fourth Amendment, “Public Schools,” supra.

¹³²² This single rule, the Court explained, will permit school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S. at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.” 469 U.S. at 342 n.9.

¹³²³ 467 U.S. 253 (1984).

¹³²⁴ See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4, Waiver of Jurisdiction (2d ed. 1989).

¹³²⁵ 492 U.S. 361 (1989).

¹³²⁶ Thompson v. Oklahoma, 487 U.S. 815 (1988).

¹³²⁷ See analysis of Eighth Amendment principles, under “Capital Punishment,” supra.

¹³²⁸ 422 U.S. 563 (1975). The Court bypassed “the difficult issues of constitutional law” raised by the lower courts’ resolution of the case, that is, the right to treatment of the involuntarily committed, discussed under “Liberty Interests of People with Mental Disabilities: Commitment and Treatment,” supra.

¹³²⁹ 422 U.S. at 576. Prior to O’Connor v. Donaldson, only in Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940), had the Court considered the issue. Other cases reﬂected the Court’s concern with the rights of convicted criminal defendants and generally required due process procedures or that the commitment of convicted criminal defendants follow the procedures required for civil commitments. Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504 (1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407 U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972).

¹³³⁰ 422 U.S. at 576–77. The Court remanded to allow the trial court to determine whether Donaldson should recover personally from his doctors and others for his confinement, under standards formulated under 42 U.S.C. § 1983. See Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).

¹³³¹ O’Connor v. Donaldson, 422 U.S. 563, 573 (1975).

¹³³² Zinermon v. Burch, 494 U.S. 113 (1990).

¹³³³ Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental hospital).

¹³³⁴ 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979).

¹³³⁵ 442 U.S. at 598–617. The dissenters agreed on this point. Id. at 626–37.

¹³³⁶ 442 U.S. at 617–20. The dissenters would have required a preconfinement hearing. Id. at 637–38.

¹³³⁷ 442 U.S. at 617. The dissent would have mandated a formal postadmission hearing. Id. at 625–26. source

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What Is Jurisdiction? Jurisdition vs Venue?

The Truth News — Mon, 01 Jul 2024 22:30:03 +0000

What Is Jurisdiction? Jurisdition vs Venue?

What Is Jurisdiction?

Jurisdiction refers in general to a court’s ability and authority to decide a case brought before it.

Jurisdiction Over Subject Matter

Subject matter jurisdiction pertains to the court’s ability to hear cases regarding specific types of claims. There are many different types of courts on the trial level, including criminal court, civil court, small claims court, Surrogate’s court, bankruptcy court, and family court. In some cases, it will be obvious which court should hear your claim, but for others, the plaintiff will need to submit their matter to a court that is authorized to hear the claim under the applicable law where the claim is filed.²

Why There Are Laws on Jurisdiction

Jurisdiction is an important principle in criminal law. These laws ensure that a local community can police itself and dictact how crimes occurring in the area are prosecuted. In addition, prosecuting crimes locally is significantly more convenient for all parties, including victims, witnesses, police officers and even the defendant. This is why the law generally limits criminal prosecutions to the county in which the crime occurred.

What Is Venue?

Venue means the location—which district or county in a state or the U.S.—where the lawsuit will take place.¹ Venue is typically decided by the law, but will most often be where the events leading up to the claim took place.¹⁰

In a criminal case, “venue” refers to the county or district where a case will be decided. Jurisdiction is a related, but broader concept. It refers to the legal authority to hear a case. Venue, on the other hand, refers to the precise location where the case will be heard. So, for example, the state of California might have jurisdiction over a case, while a court within Los Angeles may be the venue for it.

Statutes, constitutional provisions, and court rules set the rules for venue. Many state constitutions guarantee a defendant the right to be tried by an impartial jury in the county where the crime occurred.

Proving Venue

Some states consider venue a fact that the prosecution must prove in order to obtain a valid conviction. So, the prosecution might have to prove, for example, that the county courthouse where the proceedings are occurring is the proper place. Some states don’t require the prosecutor to prove venue unless the defendant presents some evidence that the venue is wrong.

Other states view venue as nothing more than a choice of the most appropriate location—a choice that doesn’t affect the validity of the proceedings.

How to Prove It

In states that require the prosecution to prove venue (those that consider it a “jurisdictional fact”), failing to prove venue may lead to case dismissal or an invalid conviction.

Proving that venue is proper typically means proving where the alleged crime occurred. Circumstantial evidence may be enough to prove where the acts in question happened, or direct testimony might establish that venue is proper. For instance, a sheriff’s deputy might testify that:

he works in a particular county
his patrol area is from point X to point Y in the county, and
he observed the crime while on patrol, in between points X and Y.

That testimony would probably be enough to prove venue.

In federal court, the prosecution must prove venue merely by a preponderance of evidence. (“Venue” in a federal criminal case typically refers to the “district” of prosecution; see this U.S. Courts overview.) Some states use the same standard, but most use “beyond a reasonable doubt.” Under either standard, the prosecution can easily prove venue with one witness’s testimony that the crime occurred within the relevant city, county, or federal district.

Uncertain Venue

Again, venue is usually the county or district where the crime occurred. But what if a crime takes place in more than one place? In a state case, if different parts of a crime occur in different counties, the following may go toward determining venue:

the nature of the offense
where the elements of the crime took place
where the criminal act took effect.

The Basics of Venue

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…” Federal Criminal Rule 18 echoes the same requirement: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.”

Because some statutes do not define where a crime is committed, the Supreme Court has explained that “[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”[1] Venue is proper only where the acts constituting the offense—the crime’s “essential conduct elements”—took place.[2]

The government must prove that venue is proper in the district of indictment and only by a preponderance of the evidence—not beyond a reasonable doubt. And it’s a question of law for the judge to decide before trial, not a question for the jury.

Defense lawyers should routinely scrutinize indictments, and investigate separately, whether venue is appropriate where DOJ brought the case. If there is a meritorious argument to dismiss the indictment, then that motion should be filed as soon as possible in the case. Rule 12(a)(3) says that improper venue motions “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.”

The Fortenberry Case

In 2004, Jeffrey Fortenberry was elected to Congress to represent Nebraska’s 1^st District. He was a very popular congressmember in his district: winning about 70% of the general election vote in 2014 and 2016, and then about 60% in 2018 and 2020.

In 2015, the Federal Bureau of Investigation began an investigation into whether a foreign national had made illegal contributions to several election campaigns. According to the indictment, the foreign national made illegal “conduit” contributions to Mr. Fortenberry at a fundraiser he held in Los Angeles in 2016.

During the investigation, the FBI interviewed Mr. Fortenberry two times: once in Lincoln, Nebraska (not in California), and once in Washington, DC (also not in California). Mr. Fortenberry was indicted in the Central District of California for allegedly making false or misleading statements during those two interviews. His defense counsel filed a motion to dismiss based on improper venue. He noted that the Ninth Circuit had not addressed where venue is proper in a false statements case, but that the Tenth and Eleventh Circuits had both held that venue was proper where the allegedly false statements were made because they were the “essential elements” of the offense.

The trial court denied the motion, finding that because the government had to prove that the false statements were “material” and because the government’s theory of “materiality” was that they had affected the California-based investigation, venue was proper in California. Here is the entirety of the facts that allowed DOJ to bring the case in California, according to the district court:

The investigation into Defendant’s activities by federal officials in this district arose out of a fundraiser that he conducted in Los Angeles. Defendant was interviewed twice—in Nebraska and Washington, D.C., respectively—about those activities in Los Angeles. And Defendant directed his activities to the Central District of California when he contacted federal investigators in this district to request a second interview.

The case proceeded to trial. A jury convicted Mr. Fortenberry, the court sentenced him to two years of probation, and he resigned his seat in Congress. But Mr. Fortenberry continued to fight the convictions and appealed them to the Ninth Circuit.

The Ninth Circuit Decision

The Ninth Circuit reversed the district court.[3] It explained that the text of Section 1001 “plainly identifies the essential conduct of a Section 1001 offense to be the making of a false statement.” It rejected the government’s argument that materiality is an “essential conduct element” of Section 1001. It also found that DOJ should not have been permitted to prosecute these false statements based on the location of the government action that the statements could potentially influence.

The court of appeals explained that although prosecutors must prove the false statements’ materiality beyond a reasonable doubt, “the inquiry that determines venue is different.” The venue inquiry “turns on the action by the defendant that is essential to the offense, and where that specific action took place.”

In sum, the Ninth Circuit held that “materiality is not an essential conduct element of a Section 1001 violation” and thus the location of the false statement determines venue, not the location that supposedly makes the statement “material.”

Is This the End of the Prosecution of Mr. Fortenberry?

Even though the appellate court reversed his convictions in California, DOJ could indict him again in Nebraska or Washington DC. The statute of limitations is five years. But DOJ will have to move quickly. The Nebraska interview was in March 2019 and the Washington interview as in July 2019, so the respective statues will run in March 2024 and July 2024, respectively.

Practice Tips When Venue Is Questionable

Most white-collar investigations begin long before indictment. Defense counsel should always consider contesting venue during pre-indictment negotiations. This point is particularly salient in public corruption cases where a client may be well-known and well-liked in a particular jurisdiction. (The opposite could also be true; it goes without saying that you shouldn’t challenge venue in a place where your client is more popular than another possible place.) In a case like Mr. Fortenberry’s, though, where a client is popular in a particular place, challenging venue is an essential pretrial strategy.

Challenging venue may be a two-step process: a motion to dismiss for lack of venue and, if that fails, a motion to transfer venue. Even if venue is technically proper in two places, a defendant can move to transfer venue to a different location under Rule 21(b). Under that rule, “the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.”

The Supreme Court has established 10-factor test to evaluate venue transfer motions: (1) location of the defendant; (2) location of witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) disruption of the defendant’s business; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket conditions in each district; and (10) any other specific element which might affect the transfer.[4]

The trial court—unsurprisingly—denied Mr. Fortenberry’s motion to transfer venue. Still, it was a valid argument to make and defense counsel should make as many meritorious arguments before trial as possible to preserve issues for appeal.

One final note: The Department of Justice’s website contains a lengthy press release from 2021 touting Mr. Fortenberry’s indictment, and a second press release from 2022 about his conviction. Given the reversal of the convictions, DOJ should update this page to reflect that its convictions have been reversed. The fac that DOJ does not update its websites to reflect when convictions have been reversed—or with other information that surely relevant to any reader of their website—remains a travesty of justice that I’ve noted before on this blog.

[1] United States v. Cabrales, 524 U.S. 1, 6-7 (1998)

[2] See United States v. Rodriguez–Moreno, 526 U.S. 275, 280 (1999).

[3] United States v. Fortenberry, 89 F.4th 702 (9th Cir. 2023).

[4] Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964).

Changing Venue

Despite the principles above, a defendant can ask a court to change venue. State laws and court rules explain how to seek a change of venue, and may also impose deadlines. source

It is always important to establish proper venue, and easy to overlook. A criminal scenario may have all the required elements, all the witnesses and evidence, and no viable defense, but if territorial jurisdiction is lacking, the case cannot move forward. And California’s patchwork of counties can make this issue a particularly thorny one for prosecutors.

Typically such situations are very fact-specific. In Orange County recently, a case was filed alleging felony violations of burglary in the second degree and identity theft against two defendants who had used credit cards in West Covina (Los Angeles County) that had previously been stolen in Dana Point (Orange County). The fraudulent purchases occurred on the same day as the original burglary. In the course of the investigation, the co-defendant was positively identified from store surveillance video, but his accomplice remained unknown. A week later, the named defendant returned to the store to make additional purchases with the stolen card, and was eventually identified through his rental car’s license plate number.

At the preliminary hearing, the Orange County burglary posed an obvious venue problem for the prosecution in Los Angeles County. Generally, venue is proper “in any competent court within the jurisdictional territory of which is committed.” (Pen. Code, § 777). In mixed-jurisdiction cases, Penal Code section 781 provides, “when a public offense is committed in part in one jurisdictional territory and in part in another jurisdictional territory, or the acts thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction for the offense is in any competent court within either jurisdictional territory.” The magistrate, however, found that nothing tied the named defendant to crimes in Orange County, with no evidence that a burglary (or any preparatory act) was committed by him there.

On appeal, the Fourth Appellate District noted some identity theft-specific provisions in the general venue statutory scheme. For instance, Penal Code section 786, subdivision (b)(1) states that in such cases, venue is proper “’in the county where the theft of the personal identifying information occurred,’ among other places.” (See, e.g., People v. Posey (2004) 32 Cal.4th 193 at 218). But the court affirmed the magistrate’s holding, reasoning that there were simply no facts from which to conclude that the named defendant was in Orange County the day of the burglary, or that he had been involved in some way. The court even rejected the prosecution’s creative “reasonable inference” argument (unexplained possession of stolen property could lead a reasonable person to entertain a strong suspicion that the possessor either stole it or received it with knowledge of its stolen character), citing People v. Jackson(1970) 14 Cal.App.3d 57, 63.

Proper venue is a question of law to be determined by the court prior to trial. It may be challenged by demurrer, or it may be raised at the preliminary hearing. (Pen. Code, §1004, subd. (1); People v. Remington (1990) 217 Cal.App.3d 423). The prosecution bears the burden to establish the facts underlying the venue by a preponderance of evidence. (People v. Posey, supra, 32 Cal.4th at 213).

The lesson for prosecutors is that there are no shortcuts to building a case on both sides of the county line. Without evidence, the burglary charge in the neighboring county cannot meet even the relatively low burden of proof here.

The case is People v. Watkins (2022) 78 Cal.App.5th 903. For more on venue and jurisdiction, see CEB’s California Criminal Law Procedure and Practice, chapter 15.

Establishing Venue When Crime Crosses County Lines

Paul Myslin

Content Attorney at CEB – Continuing Education of the Bar

The case is People v. Watkins (2022) 78 Cal.App.5th 903. For more on venue and jurisdiction, see CEB’s California Criminal Law Procedure and Practice, chapter 15. source

15 Change of Venue

§15.3 III. VENUE AND JURISDICTION DISTINGUISHED

“Venue” and “jurisdiction” are sometimes used interchangeably. See, e.g.,Pen C §1462.2, which uses “jurisdiction” instead of “venue.” Venue means the territorial jurisdiction in which a case may be brought to trial and which can be conferred by consent of the parties. People v Douglas (1990) 50 C3d 468, 497 (territorial jurisdiction existed in county where murder was arranged and where defendant met victims and accomplice); People v Crise (1990) 224 CA3d Supp 1 (conviction reversed because defendant tried under Health & S C §11550 in county unrelated to one where conduct occurred). Territorial jurisdiction can refer to a county or a judicial district within a county. Pen C §691(c).

In contrast, jurisdiction refers to the inherent power of a court to hear and determine a case. Jurisdiction is composed of two elements, personal and subject matter jurisdiction. Burns v Municipal Court (1961) 195 CA2d 596, 599. Subject matter jurisdiction refers to a court’s inherent power to hear and determine a case of a particular class. Original subject matter jurisdiction is conferred on California courts by Cal Const art VI, §10. Subject matter jurisdiction can neither be waived nor be conferred by consent or stipulation. Griggs v Superior Court (1976) 16 C3d 341, 344 n2. Any judgment without subject matter jurisdiction is void. Taliaferro v County of Contra Costa (1960) 182 CA2d 587. source

Which County Will Prosecute – Crime Happened in 2 Counties?

It is not uncommon in the Los Angeles area for a client of ours to make sales of narcotics in Orange, Los Angeles, Riverside, Ventura and / or San Bernardino County, especially when sales are made over the phone by text messages and delivery men are used. The issue that naturally arises once one is caught is where will one be prosecuted?

In a Nutshell: In a case where a police decoy in Ventura County agrees to buy heroin from someone located in Los Angeles County, venue was proper in Ventura County although the exchange of money for the drug and the delivery of the drug took place in Los Angeles County.

This is a significant issue because the various counties have significant differences in how they punish narcotics offenses. However, other offenses also have widely varying punishment, too.

Penal Code Section § 777 gives some direction on this issue. It states that “the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.

Penal Code Section § 781 also clarifies the answer, saying that when the acts or effects constituting a requisite to the consummation of the offense take place in two counties, the jurisdiction for prosecution of such an offense is in either county.

Penal Code Section 784.7 – Assumption of Jurisdiction – It is a general legal principle that a person is tried in the local jurisdiction where the crime occurred

source

When the Case Was Initially Filed in An Improper County

The details of California’s choice-of-venue framework are beyond the scope of this article. That said, upon initial receipt of a case, counsel should take a moment to carefully analyze the allegations of the complaint as to venue, to determine whether potential grounds for transfer via this method exist.

Code of Civil Procedure section 396b provides for mandatory transfer of a case that has been filed in the wrong court. Such a motion must be made at the outset of a case, in the time to file a responsive pleading.[i] A motion to transfer on these grounds is made in the transferor court.[ii]

No default may be taken against a party that has filed a motion to transfer while the motion is pending.[iii] On such a motion it is the moving defendant’s burden to present declarations to establish why the filing court was improper.[iv] The motion is granted when the defendant negates the grounds for a venue in the county of filing by the plaintiff.[v]

A situation can arise when a plaintiff selects a venue under Code of Civil Procedure section 395, subdivision (a), which allows an action to be filed in the county in which the defendant resides. Importantly, under this provision, in a multiple defendant case, the action can be filed in a county where any defendant resides.[vi] This creates a potential for a plaintiff to name a “sham” defendant—a defendant against which the plaintiff does not intend to actually prevail, but rather was named solely to permit filing in that defendant’s county of residence.

California caselaw is thin on a defendant’s ability to overcome this tactic, but at least one older case exists, Minyard v. Superior Court.[vii] In Minyard, the plaintiff, Holt, filed a complaint in the City & County of San Francisco, alleging she had been injured when the taxicab in which she was riding collided with a pickup truck in the City of Napa, located in Napa County.[viii] She named as defendants Yellow Cab Company, Minyard, Titmus, and Langer.[ix] She alleged Yellow Cab Company, Minyard, and Titmus owned and operated the taxi in which she was riding, and that Langer owned and operated the pickup truck.[x] Langer moved to change venue to Napa County, and the trial court denied his motion.[xi] The court of appeal then granted a writ of mandate and ultimately held the motion should have been granted.[xii]

Minyard based its decision on the uncontested evidence which was presented with the motion. This evidence established the accident occurred in Napa County; Minyard was the owner of the taxi; his employee, Titmus, was driving it at the time of the accident; Langer was the owner and driver of the pickup truck; and Minyard, Titmus, and Langer were residents of Napa County.[xiii] The evidence further established that, while the corporate defendant Yellow Cab Company was a resident of San Francisco, Minyard had been operating his own separate business called “Yellow Cab Co.” in the City of Napa.[xiv] The motion was also supported by an affidavit from an officer of Yellow Cab Company, stating it did not own the taxi involved in the accident.

Thus, as Minyard explained, “[w]ithout the inclusion of Yellow Cab Company, a corporation, as a defendant there could not possibly be any question that Langer had a clear right to the requested change of venue.”[xv] The trial court had, however, concluded because the face of the complaint alleged that Yellow Cab Company was responsible for the accident, it was bound to treat venue in San Francisco as proper.[xvi]

Minyard held this was error. Rather, as Code of Civil Procedure section 395 provides, “if any person is improperly joined as a defendant, …his residence must not be considered in determining the proper place for trial of the action.”[xvii] Minyard explained how this applies in two situations, both when a complaint fails to state a cause of action against a defendant, and “where the nonresident moving party concedes that a cause of action is formally alleged against the resident defendant but claims that the cause of action, in reality, does not exist.”[xviii] As the uncontroverted evidence before the court established that the sole defendant creating venue in San Francisco had been improperly sued, Minyard concluded that the matter should have been transferred.[xix] Minyard itself followed two older cases, Karst v. Seller, and Lachman Co. v. Central Cal. Berry Growers’ Assn.[xx], in reaching its conclusion. Minyard does not appear to have ever been cited a subsequent case, and no known case appears to contradict its conclusion or approach. It thus remains mandatory, binding authority.[xxi] Accordingly, in a “sham” defendant situation, if available at the first outset of a case, defense counsel should consider obtaining appropriate supporting declarations to argue under Minyard the “sham” defendant should not be considered for venue purposes.

Additionally, Code of Civil Procedure section 397, subdivision (a), also provides for discretionary transfer of a case filed in the wrong county. The important difference of this mechanism—besides its discretionary instead of mandatory nature—is that it may be filed at any reasonable time, unaffected by the strict timing requirements of Code of Civil Procedure section 396b.[xxii] Transfer under this statute may therefore be viable when later factual development establishes grounds to attack a “sham” defendant.

For the Convenience of Non-Party Witnesses

Code of Civil Procedure section 397, subdivision (c), together with Code of Civil Procedure section 396b, subdivision (d), also provides for discretionary transfer for “the convenience of witnesses and the ends of justice would be promoted by the change.”[xxiii] A motion to transfer on these grounds is made in the transferor court.[xxiv]

There is a critical limitation on transfer on these grounds, however: the parties’ conveniences are not considered—even if they are to testify.[xxv] Similarly, the convenience of counsel[xxvi], expert witnesses[xxvii], and employees of parties are not considered[xxviii]. Note, however, this limitation does not apply when the employee is being called to testify by the opposing party.[xxix]

An important procedural consideration on a motion for transfer for convenience of witnesses is it must be made within a “reasonable” time after all defendants have answered; note therefore in a multi-defendant case it is necessary to wait for all defendants to resolve any potential pre-answer law and motion and answer.[xxx] What constitutes a “reasonable” time depends on the facts of each case.[xxxi]

Accordingly, when defense counsel believes there is a potential for transfer on these grounds, they should endeavor to identify and make contact with potentially cooperative non-party witnesses. The goal is to obtain declarations from these witnesses to support a motion to transfer. Please note these supporting declarations are required to show (1) the names of each witness expected to testify for both parties; (2) the substance of their expected testimony; (3) whether the witness has been deposed or has given a statement regarding the facts of the case (and if so, the date of the deposition or statement); (4) the reasons why it would be “inconvenient” for the witnesses to appear locally; and (5) the reasons why the “ends of justice” would be promoted by transfer to a different county.[xxxii] The declarations in support of the motion to transfer must contain admissible evidence; a change of venue cannot be based on declarations consisting of hearsay and conclusions.[xxxiii] Accordingly, a motion should not be supported by a declaration by counsel alone—rather, declarations from the witnesses themselves should be obtained.

When a Related Case Is Pending in Another County

On some occasions, a case will be filed when a related case is already pending in another county. There is a critical gateway question for transfer on these grounds: whether one or both of the cases has been designated as “complex” under the criteria given by California Rules of Court rule 3.400. The transfer of complex cases is governed by Code of Civil Procedure section 404, and the transfer of non-complex cases is governed by Code of Civil Procedure section 403.

Inter-county transfer of complex cases under Code of Civil Procedure section 404 is a cumbersome procedure, and results in the formation of a Judicial Council Coordinated Proceeding. This procedure is initiated by a petition for coordination submitted to the Chairperson of the Judicial Council and will ultimately result in the assignment of all related cases to specific judge in a specific county, referred to as the Coordination Trial Judge. Further discussion of the procedural intricacies of initiating a Judicial Council Coordinated Proceeding is beyond the scope of this article.

A significantly more streamlined procedure, however, exists for the transfer of related non-complex cases under Code of Civil Procedure 403. A motion for transfer under this statute is made before the transferee judge. The standard for transfer and coordination pursuant to Section 403 is given by Code of Civil Procedure section 404.1, which provides:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.[xxxiv]

Procedurally, before bringing a motion to transfer on these grounds, a party is required to make a “good-faith effort” to obtain the agreement of all parties to the proposed transfer and coordination and notify all parties of an obligation to disclose to the court any information they have concerning any other motions requesting transfer of any case that would be affected by the motion.[xxxv] When filing such a motion, in addition to being filed to be ruled upon by the transferee court, must be served on all parties to each action, and on the transferor court.[xxxvi] Additionally, the motion must be supported by a declaration establishing (1) the cases involved meet the criteria for coordination set forth in the statute, (2) the cases are non-complex, (3) the moving party complied with the meet-and-confer requirement discussed above, and (4) the moving party provided the notification regarding other potentially related cases discussed above.

There is a third scenario, not clearly contemplated by the Code of Civil Procedure—whether a non-complex case be transferred for coordination with a complex case. Tyson & Mendes attorneys have successfully argued this is indeed possible.

The relevant portion of Code of Civil Procedure section 403 reads:

A judge may, on motion, transfer an action or actions from another court to that judge’s court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.[xxxvii]

Most notably, the word “actions” is pluralized in Code of Civil Procedure section 403. On a plain reading, therefore, Section 403 could potentially permit the transfer of a non-complex case for coordination with a complex case. There appears to be no published decision by any California court addressing the construction of Code of Civil Procedure section 403.

Arguing from general rules of statutory construction, Tyson & Mendes attorneys have successfully argued the choice of the legislature to pluralize the word “actions” in Code of Civil Procedure section 403 means the statute can be to be used to transfer a non-complex case for coordination with a complex case. Thus, a defendant may be able to transfer a non-complex case for coordination with a complex case while avoiding the cumbersome procedures involving the Judicial Council under Code of Civil Procedure section 404. With careful analysis of the specific factual and procedural circumstances of a case, defense counsel may be able to neutralize plaintiff’s inherent advantage of initial choice of venue, and effect transfer of case to a more favorable county. source

Judge’s Jurisdiction – Judicial Ethics for Pro Se Litigants (click here)

What Are My Rights as a Dad? Father’s Parental rights: Existing law and established boundaries

The Truth News — Mon, 01 Jul 2024 17:05:38 +0000

California Fathers’ Rights 2024 – What Are My Rights as a Dad?

Fathers’ Rights

It’s crucial to realize that a father has exactly the same rights as a mother in California. Judges in custody cases are required to make their decision based just on what is most beneficial for the child. They are legally prohibited from presuming that the sex or gender of one parent provides an inherent benefit for the children than the other.

That said, the specifics of a custody case can mean that the mother is granted more rights than the father, often because of the father’s work commitments. However, if a father can demonstrate that they can be as available as the mother, they are due equal rights to the children. If that can be shown, a judge must have a compelling reason, other than gender or sex, to take rights away. Some of the rights that a father is granted include:

Equal Parental Decision-Making – This is also known as joint legal custody. Fathers have an equal right as mothers regarding the decisions that are to be made about the child’s parenting, including medical, education, and religious decisions.
Equal Parenting Time – While a 50/50 arrangement is not possible in every case, it is important that fathers recognize that they have a right to fight for as close to that arrangement as they can manage. If their circumstances change, particularly as the child ages and is able to care for themselves for short periods of time, then fathers should make an effort to gain more custody time when possible.
Modification of Custody – There are a number of reasons why custody might be modified to give fathers more time with their children. In particular, if the mother attempts to alienate the children from the father or makes false claims regarding him, this should be brought to the attention of the court.
Protection Against False Allegations – False allegations are taken very seriously by the courts and can result in fathers’ getting greater or sole custody. If you are falsely accused, it’s important to remain calm, say nothing until you can speak with your lawyer, and let the legal process handle the matter.

Many fathers feel like the system works against them with regard to the custody of their children in a divorce. They feel like the mother has all the advantages. There’s no need to feel this way. With the right representation, there is no legal reason why any bias should be shown toward the mother. The law prohibits judges from doing so. If a father is willing to make the case for his rights, he has the same ones as the mother. However, ensuring that those rights are protected requires a legal team that is ready to stand firm to defend them.

Table of Contents

Fathers’ Rights

Equal Parental Decision-Making – This is also known as joint legal custody. Fathers have an equal right as mothers regarding the decisions that are to be made about the child’s parenting, including medical, education, and religious decisions.
Equal Parenting Time – While a 50/50 arrangement is not possible in every case, it is important that fathers recognize that they have a right to fight for as close to that arrangement as they can manage. If their circumstances change, particularly as the child ages and is able to care for themselves for short periods of time, then fathers should make an effort to gain more custody time when possible.
Modification of Custody – There are a number of reasons why custody might be modified to give fathers more time with their children. In particular, if the mother attempts to alienate the children from the father or makes false claims regarding him, this should be brought to the attention of the court.
Protection Against False Allegations – False allegations are taken very seriously by the courts and can result in fathers’ getting greater or sole custody. If you are falsely accused, it’s important to remain calm, say nothing until you can speak with your lawyer, and let the legal process handle the matter.

FAQs

Q: What Are My Parental Rights as a Father in California?

A: Put most simply, a father’s parental rights in California are the same as a mother’s. The law makes it clear that there shouldn’t be any bias based on gender/sex when determining things like child custody. However, it is important to recognize that, with regard to children, the courts are obligated to do what is in the interests of the child. This means that, for a father to get the rights that are due to him, he must be able to elaborate on why that is in the interests of the child. Some of the rights that fathers have include:

Equal parenting time
Equal decision-making rights
The opportunity for modification of the custody agreement when necessary
Protection against false allegations

The court must have a good reason for not giving fathers equal rights to raising and spending time with their children. However, holding the court accountable for that is something that can often be dependent upon strong legal representation.

Q: Can a Mother Keep the Child Away From the Father in California?

A: A mother must follow the custody agreement that was settled in court. If there is joint physical custody, then they must adhere to the schedule that was agreed upon. The same is the case for visitation rights that have been granted to the father. If the mother does not follow the process that the custody ruling prescribes, this can be grounds for reopening and modifying the custody agreement.

Q: Is the Mother Given Preference in Custody in California?

A: There are no legal grounds for giving the mother preference in California. In fact, courts are prohibited by law from favoring either parent on the basis of gender or sex. This means that fathers are to be seen as completely equal to mothers in the eyes of the court. Of course, it is important to recognize that the court is also required to do whatever is ideal for the child’s welfare in their decisions. They may find that, if the mother’s work situation allows for a better opportunity to watch the children, she may be granted greater physical custody. Whatever custody arrangement a father is seeking, it is vital that he has quality representation that is able to argue why it is optimal for the child involved.

Q: What Do I Do About False Allegations of Domestic Violence or Child Abuse?

A: Few things can be more frustrating and difficult to process than false allegations. However, despite the emotions that this can cause, you should ideally remain calm. Any kind of outburst could be used against you, so you will want to maintain self-control. From there, you should cooperate with the police but use your right to not say anything without your lawyer present. Once your lawyer is present, allow the legal process to unfold. That is the strongest chance you have of overcoming any false allegations. source

THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

By K. Edward Greene1

The Fourteenth Amendment

No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Federal Case Law

Section 9.32 Particular Rights — 14th Amendment — Due Process — Interference with Parent / Child Relationship (read all about that here) (and can be downloaded here)

read another amendment section under the 5th amendment below Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

Due process is what separates a free society from a police state. When the Fourteenth Amendment of the Constitution says that the government shall not “deprive any person of life, liberty, or property, without due process of law, ” that does not meant that the government cannot take away a person’s life, liberty or property, but that it cannot take those things away without first giving that person a fair chance to defend him or herself. For instance, the government cannot imprison someone or take away his or her children without allowing the person to challenge the government’s actions. source

“Parents have a fundamental liberty interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings.” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210, relying upon Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) In Santosky, the court held that due process requires the state to prove its allegations by clear and convincing evidence before terminating parental rights. (Santosky, pp. 779, 754, 747-748, 751-754 concluding New York procedures terminating parental rights upon a showing of neglect by ” ‘a fair preponderance of the evidence‘ “ did not satisfy due process.)

Santosky did not purport to require a finding of parental unfitness in proceedings to terminate parental rights, addressing only the standard of proof in such proceedings. The court noted, however, that victory by the state “entails a judicial determination that the parents are unfit to raise their own children,” and suggested a showing of unfitness may be constitutionally required. (Santosky, supra, 455 U.S. at p. 760 & fn. 10, citing Quilloin v. Walcott (1978) 434 U.S. 246, 255.)

In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), the California Supreme Court addressed a parent’s contentions that, under Santosky v. Kramer (1982) 455 U.S. 745, California’s dependency statutes violate due process because they permit termination of parental rights based on a finding, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment. (Cynthia D., at pp. 245-246, 250.)

The court held that the procedure for terminating parental rights under section 366.26 comports with due process, when considered in the context of California’s dependency scheme as a whole, and that Santosky does not compel the use of an elevated standard of proof. (Cynthia D., at pp. 253, 254-256.) The court explained:

“By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. . . . The grounds for initial removal of the child from parental custody have been established under a clear and convincing standard ; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. ” (Cynthia D., at p. 253.)

By the time a juvenile court considers termination, “the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child . . . .” (Id. at p. 256.)

Thus, where the court has made the findings necessary to remove the child at the disposition hearing and to overcome the presumption of return at subsequent status reviews, due process does not require evidence of unfitness at the section 366.26 hearing.

“The purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.” (Cynthia D., supra, 5 Cal.4th at p. 253.)

“In order to terminate parental rights, the court need make only two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.” (Id. at pp. 249-250.) source

Parents Rights Current law

Both federal and California law provide parents with rights, but those rights are not unlimited. Rather, they underscore the need for parents to be involved and engaged in their child’s education. Beginning in the 1920s, federal courts have considered numerous parental rights questions and the decisions in those cases have created a longstanding framework for educators and parents to rely on. In the cases of Meyer v. Nebraska (262 US 390 (1923)) and Pierce v. Society of Sister (269 US 510 (1925)) the U.S. Supreme Court first established the basic principle that under the Fourteenth Amendment’s substantive due process rights, parents have the right to direct their children’s upbringing and education. This Meyers-Pierce right, as it is sometimes referred to, was further explained and relied on in cases such as Wisconsin v. Yoder (406 US 205 (1972)), when the Court found that a state cannot compel parents to send their children to school when they hold a legitimate religious belief that prevents them from doing so. Similarly, in Troxel v. Granville (520 US 57 (2000)) the Court held that parents have a fundamental right to make decisions “concerning the care, custody, and control of their children.”

This broad parental right under the Fourteenth Amendment is not without limits. Not long after the Meyer-Pierce right was established, the Court decided in Prince v. Massachusetts (321 US 159 (1944)) that the “family itself is not beyond regulation in the public interest,” reeling in the right and establishing a boundary that allows courts to regulate the treatment of children when it is in their best interest. Based on that boundary, courts have further clarified that although parents may opt to send their children to public school, their parental rights do “not extend beyond the threshold of the school door.” (Fields v. Palmdale School District, 427 F.3d 1197 (9thCir. 2005).)

More specifically, parents “do not have a due process right to interfere with curriculum, discipline, hours of instruction, or the nature of other curricular or extracurricular activities.” (Cal. Parents for the Equalization of Educ. Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020).) This limit also applies to parents who wish to influence school policies. In Parents for Privacy v. Barr (949 F.3d 1210 (Ninth Cir. 2020)), a case related to school policies for bathroom use by transgender students, the court held that parents “have a right to remove their children” from public schools, but not to dictate school policy.

California law aligns with these parental rights principles described by federal judges. Education Code sections 51100–51102 describe the need for parental involvement in a child’s education and states that it is “essential to our democratic form of government that parents and guardians of school age children attending public schools and other citizens participate in improving public education institutions.” (Education Code 51100.) As a result, “the parents and guardians of pupils enrolled in public schools have the right and should have the opportunity, as mutually supportive and respectful partners in the education of their children … to be informed by the school and to participate in the education of their children…”.” (Education Code 51101.) This includes the right to observe and examine the curriculum in classroom(s) where their children are enrolled and receive information about the academic performance standards, proficiencies or skills their child is expected to accomplish. (Id.) Education Code section 51101 also includes the ways in which parents can contribute to their student’s learning environment by “volunteering in their children’s classrooms, or for other activities at the school,” and “working with their children at home in learning activities that extend learning in the classroom.” (Id.)

These state and federal rights may change over time through legislative action, like the Parents Bill of Rights Act, or through judicial decisions at the state or federal level. Any such changes will require adaptation and implementation by school district and county office of education boards as well as understanding from parents as to the rights they have and how they can be involved in the education of their children. Civic engagement through voting and participation at the board and legislative level afford parents a direct opportunity for involvement in this process. source

Parents Absolutely Have Rights to Their Children’s Education

Parents’ rights to raise their children is found in the 14th Amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is parents rights in controlling the care of their children.

Many Supreme Court Cases Have Interpreted the 14th in Conjunction with Parents Rights

Troxel v Granville was a case about grandparents rights v. parents rights. In that case, unmarried parents Granville and Troxel had 2 daughters before they separated. Troxel committed suicide. Granville’s parents brought an action seeking visitation with the kids. Eventually Granville remarried.

The U. S. Supreme Court affirmed the Washington state supreme court’s ruling that the statute used by the grandparents to seek custody was an unconstitutional infringement on the fundamental rights of parents to control the upbringing of their children.

Troxel Golden Nuggets

In the Troxel case, the Supreme Court cited numerous precedent to support its finding that parents have a fundamental Constitutional right to the rearing of their children. NOT the State.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”

Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535.

Parents Have a Right to Know What is Happening to Their Child at School

Here are more gold nuggets from Troxel.

We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

What About a Child’s Privacy Rights?

Bonta’s letter threatens:

“As the California Department of Education has instructed, “Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law byincreasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”

Courts have recognized that gender identity is a protected privacy right under the California and U.S. Constitutions. (See Whalen v. Roe (1997) 429 U.S. 589, 598–600 (avoiding disclosure of personal matters is constitutionally protected).

This is false. Whalen does NOT state that children have privacy rights against their parents when it comes to health or mental health issues like gender dysphoria.

The constitutional question presented in Whalen is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor’s prescription, certain drugs for which there is both a lawful and an unlawful market.

Parents are NOT the Enemy

Opponents of the Parental Notification Policy assume parents are the children’s enemy. They also assume that all parents would not support their child’s choice.

Both assumptions are false.

For the most part, parents love their children. If there is something happening at the school, whether it’s bullying, eating disorder, or gender dysphoria – most parents would quit their careers just to help get their children counseling or help them through it.

Yet according to the State, parents are not entitled to information regarding their own children

Laws are Suppose to Protect Children

Historically, laws protected children. You must be 21 to drink alcohol. 18 to vote. 16 to drive. Age of consent varies from 16 – 18 in all states. Children cannot legally consent to sex.

Yet, new laws in California such as AB 665 allows minors, 12 years of age or older, to consent to mental health treatment or residential shelter services. This means a 5th or 6th grader can be persuaded by a “licensed professional” to receive treatment for a personal mental health issue and the parents don’t have to consent or be notified unless the professional considers it appropriate.

Gender affirming care for children is consensus-based, not evidence based. It’s not wonder that gender detransition lawsuits are abounding.

Parental Notification Policy

More information about Parental Notification Policy here.

source

WHAT ARE FATHER’S RIGHTS IN CALIFORNIA?

CHILD CUSTODY IN CALIFORNIA

California has made significant strides in recognizing and protecting fathers’ rights regarding family law and parental rights. Courts no longer automatically grant primary custody of children to the mother, which leaves fathers with limited visitation rights. Today, the legal landscape has evolved to promote equal rights for both parents and shared responsibilities.

LEGAL CUSTODY VS. PHYSICAL CUSTODY

In California, child custody is divided into two categories: legal custody and physical custody.

LEGAL CUSTODY

Legal custody refers to the right to make important decisions about the child’s upbringing, such as education, healthcare, and religious upbringing. In most cases, California courts prefer joint legal custody, meaning both parents share these decision-making responsibilities.

PHYSICAL CUSTODY

Physical custody describes where the child lives. Physical custody can be either sole physical custody, where the child mostly lives with one parent, or joint physical custody, where the child spends significant time with both parents.

PRESUMPTION OF JOINT CUSTODY

California family law operates under the presumption that joint custody is in the child’s best interests, meaning that courts typically prefer shared parenting arrangements that allow both parents to be actively involved in the child’s life.

However, the court will consider several factors when determining custody arrangements, including:

The child’s age and health
The emotional ties between each parent and the child
The ability of each parent to provide a stable and loving environment
Any history of domestic violence or substance abuse

ESTABLISHING PATERNITY

Before a father can assert his rights in California, he must establish legal paternity. Once the parents establish paternity, a father gains legal rights and responsibilities regarding the child, including the right to seek custody and visitation.

Parents may establish paternity in several ways:

VOLUNTARY DECLARATION OF PATERNITY

Suppose both parents agree on the child’s paternity. In that case, they can complete and sign a Voluntary Declaration of Paternity (VDP) form, which parents can sign at the hospital after the child’s birth or at a later date.

COURT ORDER

If there is a paternity dispute, either parent can petition the court to establish paternity through genetic testing.

FATHER’S RIGHTS IN CHILD CUSTODY

REQUESTING CUSTODY

Fathers in California have the same legal right as mothers to request custody of their children. It’s essential to work with an experienced family law attorney to navigate the court system effectively. When making custody decisions, California courts prioritize the child’s best interests above all else.

MODIFYING CUSTODY ORDERS

If circumstances change after establishing a custody order, either parent can request a modification. Modification of custody orders could be sought due to changes in the child’s needs, a parent’s relocation, or a change in work schedules. Fathers can seek modifications to ensure custody arrangements remain in the child’s best interests.

FATHER’S RIGHTS TO VISITATION

Even if a father does not have physical custody of his child, he has the right to seek visitation. California courts generally believe children benefit from regular and meaningful contact with both parents. Visitation schedules can be established to accommodate the child’s needs and the parent’s availability.

It’s important to note that visitation rights can be restricted or supervised if there are concerns about the child’s safety or well-being while in the father’s care. However, these restrictions are typically imposed only when there is clear evidence of a risk to the child. source

source

A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings

source

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

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Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

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Anti-SLAPP Law in California

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Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

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Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

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We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

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Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

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Learn More About True Threats Here below….

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We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

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Speech Is Not Violence and Violence Is Not Speech

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

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Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

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The Attorney’s Sworn Oath

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New Supreme Court Ruling – makes it easier to sue police

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Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

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The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

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l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

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DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

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At the Intersection of Technology and Law

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so if you are interested in learning about Introducing Digital Evidence in California State Courts
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S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

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Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment

The Truth News — Fri, 29 Mar 2024 22:52:08 +0000

Introducing Digital Evidence in California State Courts

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

In order to introduce documentary and electronic evidence obtained in compliance with California Electronic Communication Privacy Act (Penal Code §§ 1546.1 and 1546. 2) in court, it must have four components:

it must be relevant.
it must be authenticated.
its contents must not be inadmissible hearsay; and
it must withstand a “best evidence” objection.

If the digital evidence contains “metadata” (data about the data such as when the document was created or last accessed, or when and where a photo was taken) proponents will to need to address the metadata separately, and prepare an additional foundation for it.

Relevance of Evidence

Only relevant evidence is admissible. (Evid. Code, § 350.) To be “relevant,” evidence must have a tendency to prove or disprove any disputed fact, including credibility. (Evid. Code, § 210.) All relevant evidence is admissible, except as provided by statute. (Evid. Code, § 351.)

For digital evidence to be relevant, the defendant typically must be tied to the evidence, usually as the sender or receiver. With a text message, for example, the proponent must tie the defendant to either the phone number that sent, or the phone number that received, the text. If the defendant did not send or receive/read the text, the text-as-evidence might lack relevance, one must prove that the device used was in the hands of the person being accused. In addition; evidence that the defendant is tied to the number can be circumstantial. And evidence that the defendant received and read a text also can be circumstantial.

“I Thought I Could Avoid Tech By Choosing A Job for Non Techies…. Couldn’t Escape the Tech Crush”

Theories of admissibility include:

Direct evidence of a crime
Circumstantial evidence of a crime
Identity of perpetrator
Intent of perpetrator
Motive
Credibility of witnesses
Impeachment
Negates or forecloses a defense
Basis of expert opinion
Lack of mistake

Under Evidence Code 352 EC, even if the evidence is relevant and admissible, a judge may exclude it if they believe it would be confusing or misleading or if its admission could unfairly prejudice the jury against the defendant.

Introducing Documentary and Electronic Evidence

Authentication of Evidence

To “authenticate” evidence, you must introduce sufficient evidence to sustain a finding that the writing is what you say it is. (Evid. Code, § 1400 (a).) You need not prove the genuineness of the evidence, but to authenticate it, you must have a witness lay basic foundations for it. In most cases you do this by showing the writing to the witness and asking, “what is this?” and “how do you know that?” It is important to note that the originator of the document is not required to testify.
(Evid. Code, § 1411.) The proponent should present evidence of as many of the grounds below as possible. However, no one basis is required. Additionally, authentication does not involve the truth of the document’s content, rather only whether the document is what it is claimed to be.

(City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 411-412.) Digital evidence does not require a greater showing of admissibility merely because, in theory, it can be manipulated. Conflicting inferences go to the weight not the admissibility of the evidence.

(People v. Goldsmith (2014) 59 Cal. App.258, 267) In Re KB (2015) 238 Cal.App.4th 989, 291-292 [upholding red light camera evidence].)

Goldsmith superseded People v. Beckley (2010) 185 Cal. App.4th 509, which required the proponent to produce evidence from the person who took a digital photo or expert testimony to prove authentication. Documents and data printed from a computer are considered to be an “original.” (Evid. Code 255.) Printouts of digital data are presumed to be accurate representation of the data.

(Evid Code §§ 1552, 1553.) However, that resumption can be overcome by evidence presented by the opposing party. If that happens, the proponent must present evidence showing that by a preponderance, the printouts are accurate and reliable.

(People v. Retke (2015), 232 Cal. App. 4th 1237 [successfully challenging red light camera data].)

A. You can authenticate documents by:

Calling a witness who saw the document prepared. (Evid. Code, § 1413.)
Introducing an expert handwriting comparison. (Evid. Code, § 1415.)
Asking a lay witness who is familiar with the writer’s handwriting to identify the handwriting. (Evid. Code, § 1516.)
Asking the finder of fact (i.e. the jury) to compare the handwriting on the document to a known exemplar. (Evid. Code, § 1470.)
Showing that the writing refers to matters that only the writer would have been aware. (Evid. Code, § 1421.)
Using various presumptions to authenticate official records with an official seal or signature. (Evid. Code, § 1450-1454.) Official records would include state prison records, Department of Motor Vehicle documents or documents filed with the Secretary of State. There is a presumption that official signatures are genuine. (Evid. Code, § 1530, 1453.)
Any other way that will sustain a finding that the writing is what you say it is. The Evidence Code specifically does not limit the means by which a writing may be authenticated and proved. (Evid. Code, § 1410; See also People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [rap lyrics authenticated in gang case even though method of authentication not listed in Evidence Code].)SECTION 1401.
(a) Authentication of a writing is required before it may be received in evidence.(b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.

B. Common ways to authenticate email include:

Chain of custody following the route of the message, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
Security measures such as password-protections for showing control of the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
The content of the email writing refers to matters that only the writer would have been aware.
Recipient used the reply function to respond to the email; the new message may include the sender’s original message.
After receipt of the email, the sender takes action consistent with the content of the email.
Comparison of the e-mail with other known samples, such as other admitted e-mails.
E-mails obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.

In the majority of cases a variety of circumstantial evidence establishes the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) . See also, Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241F.R.D. 534, 546 [seminal case law on authenticating digital evidence under F.R.E.].)

C. Common ways to authenticate chat room or Internet relay chat (IRC) communication include:

Evidence that the sender used the screen name when participating in a chat room discussion.
For example, evidence obtained from the Internet Service Provider that the screen name, and/or associated internet protocol (IP address) is assigned to the defendant or evidence circumstantially tying the defendant to a screen name or IP address.
Security measures such as password-protections for showing control of the account of the sender and excluding others from being able to use the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
The sender takes action consistent with the content of the communication.
The content of the communication identifies the sender or refers to matters that only the writer would have been aware
The alleged sender possesses information given to the user of the screen name (contact information or other communications given to the user of the screen name).
Evidence discovered on the alleged sender’s computer reflects that the user of the computer used the screen name. (See U.S. v. Tank (9th Cir. 2000) 200 F.3d 627.)
Defendant testified that he owned account on which search warrant had been executed, that he had conversed with several victims online, and that he owned cellphone containing photographs of victims, personal information that defendant confirmed on stand was consistent with personal details interspersed throughout online conversations, and third-party service provider (Facebook) provided certificate attesting to chat logs’ maintenance by its automated system. (U.S. v. Browne (3d Cir. Aug.25, 2016) 2016 WL 4473226, at 6.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

D. Common ways to authenticate social media postings include:

Testimony from a witness, including a police officer, with training and experience regarding the specific social media outlet used testified about what s/he observed. (In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
Evidence of social media postings obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.
Testimony from the person who posted the message.
Chain of custody following the route of the message or post, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
The content of the post refers to matters that only the writer would have been aware, publicly broadcasted writings (web post that anyone can copy and paste would not fall under this).
After the post on social media, the writer takes action consistent with the content of the post.
The content of the post displays an image of the writer. (People v. Valdez (2011) 201 Cal.App.4th 1429.)
Other circumstantial evidence including that the observed posted images were later recovered from suspect’s cell phone and the suspect was wearing the same clothes and was in thesame location that was depicted in the images. (In re K.B. (2015) 238 Cal.App.4th 989.)
Security measures for the social media site such as passwords-protections for posting and deleting content suggest the owner of the page controls the posted material. (People v. Valdez (2011) 201 Cal.App.4th 1429.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. “Mutually reinforcing content” as well as “pervasive consistency of the content of the page” can assist in authenticating photographs and writings. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1436.) For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) For examples of sufficient circumstantial evidence authenticated social media posts see, Tienda v. State (Tex. Crim. App. 2012) 358 S.W.3d 633, 642; Parker v. State (Del. 2014) 85 A.3d 682, 687. Contrast, Griffin v. State (2011) 419 Md. 343, 356–359.

E. Common ways to authenticate web sites include:

Testimony from a witness, including a police officer about what s/he observed. (See In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
Testimony from the person who created the site.
Website ownership/registration. This is a legal contract between the registering authority (e.g.

Network Solutions, PDR Ltd, D/B/A PublicDomainRegistry.com, etc.) and the website owner, allowing the registered owner to have total dominion and control of the use of a website name (domain) and its content. (See People v. Valdez (2011) 201 Cal.App.4th 1429 [password protection suggest the owner of the page controls the posted material].) It may be possible to admit archived versions of web site content, stored and available at a third party web site (See https://archive.org/web/ [Wayback Machine].) First, it may be authenticated by a percipient witness who previously saw or used the site. It may also be possible to obtain a declaration or witness to testify to the archive. (See e.g. Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740, at 16 (N.D.Ill. Oct.15, 2004) [analyzing admissibility of the content of an achieved website].) The underlying challenge for web sites in not the authentication of the site; rather the content or hearsay material contained therein.

In St. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D.Tex.1999) 76 F.Supp.2d 773, 774-75 the court noted that “voodoo information taken from the Internet” was insufficient to withstand motion to dismiss because “[n]o web-site is monitored for accuracy” and “this so-called Web provides no way of verifying the authenticity” of information plaintiff wished to rely on. (See also Badasa v. Mukasey (8th Cir. 2008) 540 F.3d 909 [Nature of Wikipedia makes information from the website unreliable].) However, at noted in Section III Hearsay, the contents of the web site could be admitted as an operative fact or under a number of exceptions including an admission of a party opponent.

F. Authenticating Texts:

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing” (Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant.

Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

(People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)
Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or
received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].)
“knowingly allowing a witness to testify falsely.” (People v. Pike (1962) 58 Cal.2d 70, 97, [22 Cal. Rptr. 664, 372 P.2d 656].) The inquirer asks us to assume that disclosure of the perjured testimony to the court would so adversely reflect on the client’s credibility that the court could “reasonably be expected to render an adverse decision.“

ATTORNEY’S DUTY TO THE COURT

For the attorney to proceed with trial without taking further action raises the question whether the attorney has implicitly but intentionally consented to a deception upon the court. (Bus. & Prof. Code, 6128.) It also raises the question whether the attorney s silence and inaction is “consistent with truth” or an attempt to “mislead the judge… by an artifice of false statement of [material] fact.” (Bus. & Prof. Code, 6068, subd. (d).)

Active misrepresentations by an attorney to opposing counsel by deliberately failing to state a material fact “falls short of the honesty and integrity required of an attorney at law in the performance of his professional duties.” (Coviello v. State Bar (1955) 45 Cal.2d 57, 65-66 [286 P.2d 357].) An attorney’s active representations to a judge, accompanied by deliberate failure to disclose a material fact, is similarly reprehensible. But, in this case, the attorney is faced with decisions about how to proceed immediately after his/her discovery of the perjured testimony. The attorney has not yet taken the step of making any further representations while deliberately concealing the perjury.

It is our opinion, under the circumstances of this case, that the attorney may not remain silent and is required to take action to ensure that he/she does not give his/her implicit consent to the deception. Silence and inaction would not be consistent with truth and would constitute, albeit indirectly, an attempt to mislead the judge by an artifice, to wit, the client’s false testimony of a material fact. “An attorney who attempts to benefit his/her client through the use of perjured testimony may be subject to criminal prosecution (Pen. Code, 127) as well as severe disciplinary action.” (In re Jones (1930) 208 Cal. 240, 242 [280 P.2d 964].) (In re Branch (1969) 70 Cal.2d 200, 210-211, [74 Cal. Rptr. 238, 449 P.2d 174].) But the attorney must speak and act consistently with his/her duties to his/her client.

Opinions of the American Bar Association are not precedential guides for professional conduct of members of the California bar. (CAL 1983-71.) But they are helpful in suggesting alternative courses of conduct. ABA Formal Opinion 287 (June 27, 1953) considered the case of an attorney who secured a divorce for a client who later informed the attorney that he/she had committed perjury in a deposition in securing the divorce. The opinion held that the attorney was precluded from revealing the perjury to the court, but that the attorney should “urge his client to make the disclosure [to the court]” and if he/she refuses to do so “should have nothing further to do with him” but the attorney “should not disclose the facts to the court.” As we note below, this conclusion neglects to consider the implications of persuading the client to make disclosure to the court. It is also inapposite because it does not involve perjury committed and known to the attorney in the midst of trial. But it does suggest that withdrawal of representation by the attorney may be an appropriate course of conduct.

The Bar Association of San Francisco Legal Ethics Committee has considered the duties of an attorney whose client refused to disclose the existence of community assets during the course of a domestic relations matter. (SF Opinion 1977-2.) The Committee opined:

“In most cases the client’s refusal to disclose the existence of community assets constitutes fraud. However, since the client usually discloses this information in confidence, the attorney is under conflicting duties to maintain the confidentiality of his client’s communication and, on the other hand not to suppress the fraud or maintain his deliberate silence. Therefore, the attorney should withdraw from his representation of the client, and his failure to withdraw is a proper subject for disciplinary proceedings.”

But this opinion did not address the question of an attorney’s obligation to withdraw in the midst of trial. The domestic relations matter had not yet reached the trial stage so that, as a practical matter, withdrawal of representation would not severely prejudice the client. In the instant case, the inquirer has stated, and we accept as true, that withdrawal would result in the client’s losing his/her case.

But the attorney may have a duty to withdraw from the case. Rule 2-111(B)(2), Rules of Professional Conduct mandates that he/she withdraw when:

“He knows or should know that his continued employment will result in a violation of these Rules of Professional Conduct [which includes Rule 7-105] or of the other State Bar Act [which includes Bus. & Prof. Code, 6068, 6128].” source

Rule 3.3: Candor toward the tribunal

Rule 3.3(a)(1)] provides that a lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Rule 3.3(a)(3) (if lawyer has knowledge of client or client-witness perjury, the duty to take remedial measures includes, “if necessary, disclosure to the tribunal.”)

The key to prevent criminal and civil negligence is to withdraw without disclosing the perjured testimony an attorney may remove themselves from a case or request dismissal of his cause of actions once he realizes the perjury. People v. Brown (1988) 203 Cal.App.3d 1335, 1339- 1340, fn. 1 [250 Cal.Rptr. 762]. See also, Cal. State Bar Formal Opn. No. 2015-192 (attorneys may disclose to the court only as much as reasonably necessary to demonstrate the need to withdraw and without violating the duty of confidentiality)

Attorney’s statutory duties of candor are found in Business and Professions Code sections 6068(b) and (d), 6106 and 6128(a) discussed in scenario #2. Attorney’s ethical duty of candor is found in rule 3.3(a)(3). Given Attorney’s knowledge that Witness has given materially false testimony, this rule requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6.”

An attorney violates the duty of candor, even where the fabrications are the work of another, if the attorney, after learning of their falsity, continues to assert their authenticity. In the Matter of Temkin (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 321; Olguin v. State Bar (1980) 28 Cal.3d 195, 198-200 [167 Cal.Rptr. 876].

Rule 3.4 Fairness to Opposing Party and Counsel (g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a subjective opinion as to the guilt or innocence of an accused

Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly:* (a) make a false statement of material fact or law to a third person;*

Rule 8.4 outlines what constitutes professional misconduct

Rule 9.4 states “In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ ”

yes, you can sue your lawyer for lying. Direct lying to the courts that would lead to harm or have harmed equate to malpractice.

Penal Code 118 PC – Perjury is defined as testimony under oath which is “willfully” false on a “material” matter. California Penal Code section 118. “Materiality” means a false statement that “could probably influence the outcome of the proceeding.”
People v. Rubio (2004) 121 Cal.App.4th 927, 933 [17 Cal.Rptr.3d 524].

California Penal Code 126 states that perjury is punishable by imprisonment for two, three, or four years under subdivision (h) of Section 1170. This section is part of Chapter 5, which is about perjury and subornation of perjury

Perjury is defined in California Penal Code section 118: “Every person who, having taken an oath that he will testify… truly before any competent [court]… wilfully and contrary to such oath, states as true any material matter which he knows to be false… is guilty of perjury.”

Perjury is a felony. (Pen. Code, 126.) The perjurer’s lack of knowledge of materiality is no defense to the crime. (Pen. Code, 123.)

The first duty arises under Business and Professions Code section 6068, subdivision (e) which provides that it is the duty of a lawyer:

“To maintain inviolate the confidence and at every peril to himself to preserve the secrets, of his client.”

The second duty arises under Business and Professions Code section 6128 which provides that an attorney is guilty of a crime who:

“(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.“

This second duty is also reflected in other provisions of the Business and Professions Code and Rules of Professional Conduct.

“It is the duty of an attorney to… maintain the respect due to the courts of justice and judicial officers.” (Bus. & Prof. Code, 6068, subd. (b).)

“It is the duty of an attorney to… employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of law or fact.” (Bus. & Prof. Code, 6068, subd. (d).) (See also Rule of Professional Conduct 7-105 [which restates in pertinent part Bus. & Prof. Code, 6068, subd. (d)].)

This scenario concerns an attorney’s duty of candor to the court, found in rule 3.3 (“Candor Toward the Tribunal.”) and Business and Professions Code section 6068. The former provides, in part, “A lawyer shall not: . . . offer evidence the lawyer knows to be false.”

Business and Professions Code section 6068(b) and (d) likewise provides, “It is the duty of an attorney . . . (b) To maintain the respect due to the courts of justice and judicial officers. . . . [and] (d) To employ . . . means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

Correspondingly, Business and Professions Code section 6106 proscribes “the commission of any act involving, moral turpitude, dishonesty or corruption.” In addition, Business and Professions Code section 6128(a) provides: “Every attorney is guilty of a misdemeanor who
either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” It is well-established in case law, as well, that “[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution … as well as severe disciplinary action.” In re Branch (1969) 70 Cal.2d 200, 211 [74 Cal.Rptr. 238].

BPP Code § 6068(d) provides it is the duty of an attorney: (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

A fair and impartial trial is a fundamental aspect of the right of accused persons not to be deprived of liberty without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; In re Murchison (1955) 349 U.S. 133, 136 [99 L. Ed. 942, 946, 75 S. Ct. 623]; People v. Lyons (1956) 47 Cal. 2d 311, 319 [303 P.2d 329]; In re Winchester (1960) 53 Cal. 2d 528, 531 [2 Cal. Rptr. 296, 348 P.2d 904].)

People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal. App. 2d 650, 676-678 [245 P.2d 633].) Nor is the role of the prosecutor in this regard simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy.

“[I]n both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” In re Horton (1991) 54 Cal.3d 82, 95, 102 [284 Cal.Rptr. 305]. Encompassed in this is the authority to control matters of ordinary trial strategy, such as which witnesses to call, the manner of cross-examination, what evidence to introduce, and whether to object to an opponent’s evidence. Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [95 Cal.Rptr.3d 799]. However, a decision on any matter that will affect the client’s substantive rights is within the client’s sole authority. Maddox v. City of Costa Mesa (2011) 193 Cal.App.4th 1098, 1105 [122 Cal.Rptr.3d 629]. In addition, if Witness’s only purpose at trial would be to testify as an alleged eyewitness on matters now known to be false, Witness should not be mentioned in pretrial disclosure documents (for example, pretrial witness lists or trial briefs).
Penal Code section 127: “Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.”
Rule 1.16(b) presents several circumstances allowing for permissive withdrawal that may be implicated under these facts: Client is seeking to pursue a course of conduct the lawyer reasonably believes was a crime or fraud, the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent, the client’s conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively or the representation likely will result in a violation of the Rules of Professional Conduct or the State Bar Act. Rule 1.16(b)(2)-(4) and (b)(9).

The United States Supreme Court has repeatedly held that the right to testify does not include a right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United States v. Havens, 446 U.S 620, 626 (1980).

Id. at Rule 3.3. Similarly, the ABA’s Model Code of Professional Responsibility states, “In his representation of a client, a lawyer shall not . .. [k]nowingly use perjured testimony or false evidence.” Id. at DR 7-102(A)(4).

The Proposed Evidentiary Standard: Actual Knowledge

Although an attorney clearly must not participate in the presentation of perjured testimony, on what basis can an attorney conclude that a defendant is going to testify falsely? No controlling precedent provides guidance on this critical issue.

Commentators and courts in other jurisdictions have set forth a variety of standards for determining when an attorney “knows” the client intends to testify falsely, including “good cause to believe” a client intends to testify falsely, State v. Hischke, 639 N.W.2d 6, 10 (lowa 2002); “compelling support” for concluding that the client will perjure himself, Sanborn v. State, 474 So.2d 309, 313 n.2 (Fla. Dist. Ct. App. 1985); “knowledge beyond a reasonable doubt,” Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989); “a firm factual basis,” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir.1977); “a good faith determination,” People v. Bartee, 566 N.E.2d 855, 857 (ILI. Ct. App. 1991), and “actual knowledge,” United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 (S.D.Fla. 1990). See generally, Commonwealth v. Mitchell, 781 N.E.2d 1237, 1246-47 (Mass.) (surveying the range of standards), cert. denied, 123 S.Ct. 2253 (2003).

This Opinion adopts the most stringent standard: “before defense attorneys can refuse to assist a client in testifying, they must know that the client will testify falsely based on the client’s

‘The Code of Professional Responsibility and Rules of Professional Conduct. The older Model Code of Professional Responsibility

Rules of Professional Conduct was adopted in 1983 (and recently amended in other areas. See Silver, Iruth. Mistice, and the American Way:

The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 343-50 (1994) (tracing the development of the Model Code of Professional Responsibility and the Model Rules of Professional Conduct). Other than California, all states have substantially adopted either the Code of Professional Responsibility or the Rules of Professional Conduct.

Filing Frivolous Lawsuits

Filing lawsuits without a reasonable basis. Connecticut judges do not like people filing frivolous lawsuits to harass people. Instead, lawyers must perform a reasonable investigation to determine whether valid grounds exist for filing a lawsuit. Obviously, a lawyer cannot uncover all evidence before filing, but they cannot file an obviously meritless case. If they do, their client could be sued for vexatious litigation.

sometimes lawyers lie to make you the Vexatious Litigant, there are rules for that too Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

G. Authenticating Metadata:

Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’ Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include:

a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4).

Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer. Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary. Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a useful tool for authenticating electronic records by use of distinctive characteristics.” (Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].)

H. Challenges to Authenticity

Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.

Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.” (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)

Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., [click here] or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

I. Hearsay Rule

The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include;

operative facts and
data that is generated by a mechanized process and not a human declarant and,
A statement being used to show its falsity not its truth.

J. Operative Facts

Where “ ‘the very fact in controversy is whether certain things were said or done and not … whether these things were true or false, … in these cases the words or acts are admissible not as hearsay[,] but as original evidence.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.) For example, in an identity theft prosecution, there will be no hearsay issue for the majority of your documents. The documents are not being offered for the truth of the matter asserted; they are operative facts. In Remington Investments, Inc v. Hamedani (1997) 55 Cal.App.4th 1033, the court distinguished between the concept of authentication and hearsay. The issue was whether a promissory note was admissible. The court observed that: ‘The Promissory Note document itself is not a business record as that term is used in the law of hearsay, but rather an operative contractual document admissible merely upon adequate evidence of authenticity. (Id. At 1043.)

Under Remington, promissory notes, checks and other contracts are not hearsay, but operative facts. Moreover, forged checks, false applications for credit, and forged documents are not hearsay. They are not being introduced because they are true. They are being introduced because they are false. Since they are not being introduced for the truth of the matter asserted there is no hearsay issue.

Other examples of non-hearsay documents would include:

The words forming an agreement are not hearsay (Jazayeri v. Mao (2009) 174 Cal.App.4th
301, 316 as cited by People v. Mota (Cal. Ct. App., Oct. 8, 2015, No. B252938) 2015 WL 5883710 (Unpublished)
A deposit slip and victim’s identification in a burglary case introduced to circumstantially
connect the defendant to the crime. (In re Richard (1979) 91 Cal.App.3d 960, 971-979.)
Pay and owes in a drug case. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1222-1226.)
Items in a search to circumstantially connect the defendant to the location. (People v. Williams (1992) 3 Cal.App.4th 1535, 1540-1543.)
Invoices, bills, and receipts are generally hearsay unless they are introduced for the purpose of corroborating the victim’s damages. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
Defendant’s social media page as circumstantial evidence of gang involvement. (People v. Valdez (2011) 201 Cal.App.4th 1429.
Logs of chat that was attributable to Defendant were properly admitted as admissions by party opponent, and the portions of the transcripts attributable to another person were properly classified as “non hearsay”, as they were not “offered for the truth of the matter asserted.” Replacing screen names with actual names appropriate demonstrative evidence. (U.S. v. Burt (7th Cir., 2007) 495 F.3d 733.)
“To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all—and thus fall outside the ambit of the hearsay rule.” (Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1155.)
Generally, photographs, video, and instrument read outs are not statements of a person as defined by the Evidence Code. (Evid.Code §§ 175, 225; People v. Goldsmith (2014) 59 Cal.4th 258, 274; People v. Lopez (2012) 55 Cal.4th 569, 583.)

Although the check itself is not hearsay, the bank’s notations placed on the back of the check showing that it was cashed is hearsay. The bank’s notations would be introduced for the truth of the matter asserted – that the check was cashed. Evidence Code sections 1270 and 1271 solve this problem by allowing the admission of these notations as a business record.

Two helpful rules that apply to business records. First, it may be permissible to infer the elements of the business record exception. In People v. Dorsey (1974) 43 Cal.App.3d 953, the court was willing to find that it was common knowledge that bank statements on checking accounts are prepared daily on the basis of deposits received, checks written and service charges made even though the witness failed to testify as to the mode and time of preparation of bank statements. The second rule is that “lack of foundation” is not a sufficient objection to a business record. The defense must specify which element of the business record exception is lacking. (People v. Fowzer (1954) 127 Cal.App.2d 742.)

K. Computer Records Generated by a Mechanized Process

The first rule is that a printout of the results of the computer’s internal operations is not hearsay evidence because hearsay requires a human declarant. (Evid.Code §§ 175, 225.)
The Evidence Code does not contemplate that a machine can make a statement. (People v. Goldsmith (2014) 59 Cal.4th at 258, 274 [rejecting hearsay claims related to red light cameras];
People v. Hawkins (2002) 98 Cal.App.4th 1428; People v. Lopez (2012) 55 Cal. 4th.569). These log files are computer-generated records that do not involve the same risk of observation or recall as human declarants. Thus, email header information and log files associated with an email’s movement through the Internet are not hearsay. The usual analogy is that the clock on the wall and a dog barking are not hearsay. An excellent discussion on this issue can be found in Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

Metadata such as date/time stamps are not hearsay nor do they violate the confrontation clause because they are not testimonial. (See, People v. Goldsmith 59 Cal.4th at 258, 274-275; People v. Lopez (2012) 55 Cal. 4th.569, 583.)

L. Business Records

Log files and other computer-generated records from Internet Service Providers may also easily qualify under the business records exception to the hearsay rule. (Evid.Code §§1270, 1271, 1560, 1561.) Remember, you do not need to show the reliability of the hardware or software. (People v. Lugashi (1988) 205 Cal.App.3d 632.) Nor does the custodian of records need to completely understand the computer. (Id.) Additionally, the printout (as opposed to the entry) need not be made “at or near the time of the event.” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769.) Finally, a cautionary note from the Appellate Court in People v. Hawkins (2002) 98 Cal.App.4th 1428: “the true test for admissibility of a printout reflecting a computer’s internal operations is not whether the printout was made in the regular course of business, but whether the computer was operating properly at the time of the printout.” If the computer is used merely to store, analyze, or summarize material that is hearsay in nature, it will not change its hearsay nature and you will need an applicable exception for introduction. Common exceptions for the contents of email include: statement of the party, adoptive admission, statement in furtherance of a conspiracy, declaration against interest, prior inconsistent statement, past recollection recorded, business record, writing as a record of the act, or state of mind. Note also that records obtained by search warrant, and accompanied by a complying custodian affidavit, are admissible as if they were subpoenaed into court (Evid. Code §§ 1560-1561, effective January 1, 2017) and records obtained from an Electronic Communication Service provider that is a foreign corporation, and are accompanied by a complying custodian affidavit, are currently admissible pursuant to Penal Code § 1524.2(b)(4). (See also Pen. Code § 1546.1(d)(3).)

M. Government Records

An official record is very similar to a business record, even if it is obtained from a government website. The chief difference is that it may be possible to introduce an official record without calling the custodian or another witness to authenticate it. (Evid. Code, § 1280; See Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 548–49; EEOC v. E.I dupont de Nemours & Co. (2004) 65 Fed. R. Evid. Serv. 706 [Printout from Census Bureau web site containing domain address from which image was printed and date on which it was printed was admissible in evidence].) The foundation can be established through other means such as judicial notice or presumptions. (People v. George (1994) 30 Cal.App.4th 262,274.)

N. Published Tabulations

Prosecutors are often plagued with how to introduce evidence that was found using Internet-based investigative tools. For example, if your investigator used the American Registry For Internet Numbers (ARIN) programs (WHOIS, RWhois or Routing Registry Information), how is this admissible without calling the creator of these Internet databases? Evidence Code Section 1340 allows an exception to the hearsay rule, which allows the introduction of published tabulations, lists, directories, or registers. The only requirement is that the evidence contained in the compilation is generally used and relied upon as accurate in the course of business. Note that not all data aggregation sites may have the proper characteristics for this exception. In People v. Franzen (2012) 210 Cal.App.4th 1193, 1209–13, the court found that a subscription based service did not possess the characteristics that would justify treating its contents as a published compilation for purposes of section 1340

O. Former Best Evidence Rule

Reminder: The Best Evidence Rule has been replaced in California with the Secondary Evidence

Rule. The Secondary Evidence Rule allows the admissibility of copies of an original document. (Evid. Code, § 1521.) They are not admissible, however, if “a genuine dispute exists concerning material terms of the writing and justice requires the exclusion,” or if admitting the evidence would be “unfair.” (Evid. Code, § 1521.) In a criminal action it is also necessary for the proponent of the evidence to make the original available for inspection at or before trial. (Evid. Code, § 1522.) For email or any electronic document, this is especially important, given the wealth of information contained in its electronic format, as opposed to its paper image. Of interest, Evidence Code Section 1522 requires that the “original” be made available for inspection. Evidence Code Section 255 defines an email “original” as any printout shown to reflect the data accurately. Thus, the protections offered by Evidence Code Section 1522 are stripped away by Evidence Code Section 255. This is where the protections of Evidence Code Section 1521 are invoked: “It’s unfair, your Honor, not be able to inspect the email in its original format.” Also, remember that Evidence Code Section 1552 states that the printed representation of computer information or a computer program is presumed to be an accurate representation of that information. Thus, a printout of information will not present any “best evidence rule” issues absent a showing that the information is inaccurate or unreliable. Oral testimony regarding the content of an email [writing] is still inadmissible absent an exception. (Evid. Code, § 1523.) Exceptions include where the original and all the copies of the document were accidentally destroyed. Of course, none of the above rules applies at a preliminary hearing. (See Pen. Code § 872.5 [permits otherwise admissible secondary evidence at the preliminary hearing]; B. Witkin, 2 California Evidence (3rd ed., 1986) § 932, p. 897 [“secondary evidence” includes both copies and oral testimony].) i This material was prepared by Robert M. Morgester, Senior Assistant Attorney General, California Department of Justice in 2003 for the High-Technology Crime: Email and Internet Chat Resource CD-ROM, and draws heavily upon Documentary Evidence Primer, by Hank M. Goldberg, Deputy District Attorney, Los Angeles County District Attorney’s Office, January 1999. Material from that document was used with Mr. Goldberg’s permission. This material was updated in 2016 by Robert Morgester and Howard Wise, Senior Deputy District Attorney, Ventura County District Attorney’s Office.

P. How does Hearsay Play into the Era of Text Messaging?

With the ubiquitousness of smart phones, text messages have now become a preferred tool of communication for many. Due to the informal nature of text messages, many, if not most people fail to consider the potential evidentiary effect of a text message. As a general proposition, despite the informal usage of text messages, a text message can potentially still be evidence in the case, subject to the rules of hearsay, with further caveats. In this post, we specifically discuss how the lack of response to a text messages cannot qualify as an adoptive admission as an exception to the hearsay rule.

Q. Hearsay evidence in Trial

The concept of “hearsay” as it pertains to trial is well known. As many people know, out of court statements offered for its truth are barred by the hearsay rule due to inherent trustworthiness and reliability concerns. However, there are many exceptions to this rule that would allow an otherwise inadmissible statement to be offered as evidence or for some other purpose in court. One major exception to the hearsay rule are admissions made by a party.

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R. Admissions Made by a Party

Specifically, an admission for the purposes of the hearsay exceptions in any out of court statement or assertive conduct by a party to the action that is inconsistent with a position the party is taking at current proceeding. The statement itself does not necessarily need to have been against the party’s interest when it was made. Indeed, even a statement self-serving whenmade may be admissible as a party admission if contrary to the party’s present position at trial. (People v. Richards (1976) 17 Cal.3d 614, 617-618 (disapproved on other grounds by People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)

Notably, an admission does not necessarily require an affirmative statement by the party taking the inconsistent position. Indeed, silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) However, silence is not admissible as an adoptive admission if another reasonable explanation can be demonstrated. Indeed, in the recent case of People v. McDaniel (2019) 38 Cal.App.5th 986, 999 (“McDaniel”), the Court of Appeal held that failure to respond to a text message accusing defendant of committing a crime was not admissible as an adoptive admission.

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In McDaniel, the prosecution attempted to use the defendant’s mother’s statement to show an adoptive admission by the defendant because the defendant did not text his mother back to deny her indirect accusation that he had committed several local robberies. The Court of Appeal rejected that theory. As the Court of Appeal explained, given the nature of text messaging, the fact that the defendant did not text his mother back was not sufficient to show he had adopted his mother’s statement:

Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in “real time.” Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business. Furthermore, people exchanging text messages can typically switch, relatively quickly and seamlessly, to other forms of communication, such as a phone call, social-media messaging, or an in-person discussion, depending on the circumstances. In short, in light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call. source

Several California laws dictate how electronic communications can be authenticated.

Below are the evidence code numbers and examples of when they may apply:Means of Authenticating and Proving Writings
Evidence Code § 1401.
(a) Authentication of a writing is required before it may be received in evidence.
(b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.There are several ways to authenticate and prove a writing under Evidence Code sections 1410-1421.

ARTICLE 2. Means of Authenticating and Proving Writings [1410 – 1421]

Evidence Code § 1410 – the evidence code does not limit the means by which communication may be authenticated.
content may be received in evidence.
1410.Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.Testimony of a Witness with Personal Knowledge: Section 1410 allows for authentication of a writing through the testimony of a witness who has personal knowledge of the writing’s origin or content. For example, in a forgery case, a defense attorney might call a handwriting expert to testify that the signature on a contested document doesn’t match the defendant’s genuine signature, thereby undermining the authenticity of the document.Comparison with a Genuine Exemplar: Section 1411 states that if the authenticity of a questioned document is in dispute, a comparison with a known, genuine exemplar can be used to establish its authenticity. For instance, in a case involving check fraud, the defense can present a check signed by the defendant and compare the signatures to prove the questioned document’s authenticity.Expert Opinion: In cases where the authenticity of a writing is complex and may require specialized knowledge, section 1412 allows for expert testimony. For example, in a grand theft case involving digital evidence, a forensic expert might be called upon to authenticate emails, texts, or other electronically stored data.
1410.5.
- (a) For purposes of this chapter, a writing shall include any graffiti consisting of written words, insignia, symbols, or any other markings which convey a particular meaning.
- (b) Any writing described in subdivision (a), or any photograph thereof, may be admitted into evidence in an action for vandalism, for the purpose of proving that the writing was made by the defendant.
- (c) The admissibility of any fact offered to prove that the writing was made by the defendant shall, upon motion of the defendant, be ruled upon outside the presence of the jury, and is subject to the requirements of Sections 1416, 1417, and 1418.

1411. Except as provided by statute, the testimony of a subscribing witness is not required to authenticate a writing.
1412. If the testimony of a subscribing witness is required by statute to authenticate a writing and the subscribing witness denies or does not recollect the execution of the writing, the writing may be authenticated by other evidence.
1413. A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.
Evidence Code § 1413 – a witness saw the person send the message and attests to witnessing this actionDistinctive Characteristics: Section 1413 provides that when a writing has distinctive characteristics, these can be used for authentication. For example, in a cybercrime case, the unique digital signature of a hacker’s code might be used to authenticate the writing, connecting it to the defendant.
Cal. Evid. Code § 1414
Section 1414 – Admissions of authenticity
1. The party against whom it is offered has at any time admitted its authenticity; or
2. The writing has been acted upon as authentic by the party against whom it is offered.
  Evid. Code § 1414 Enacted by Stats. 1965, Ch. 299.
Public Records and Reports: Public records and reports made by a public officer in accordance with legal requirements are considered self-authenticating pursuant to section 1414. For example, in an embezzlement case where a defendant’s prior convictions for identity theft are relevant, the defense attorney can introduce certified court records to prove the authenticity of these documents.

Ancient Documents: Section 1415 states that documents over 30 years old are deemed authentic as long as they are in a condition that creates no suspicion of alteration. In a 35 year old homicide trial, the prosecution may introduce the defendant’s old diary entry confessing to the murder to prove the authenticity of certain events.

Documents Executed Under Seal: Documents with an official seal are self-authenticating and do not require further authentication under section 1416.

Certified Copies: Section 1417 states that in criminal cases that involve documents such as arrest records, certified copies from the custodian of records can be introduced as evidence, provided they are properly certified.

Documents in the Regular Course of Business: Section 1418 states that business records made in the regular course of business are considered authentic. For example, in a real estate fraud case, an attorney can introduce financial records from a company’s accounting department to prove the authenticity of financial transactions.
1415. A writing may be authenticated by evidence of the genuineness of the handwriting of the maker.
1416. A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. Such personal knowlegde may be acquired from:
- (a) Having seen the supposed writer write;
- (b) Having seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged;
- (c) Having received letters in the due course of mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer; or
- (d) Any other means of obtaining personal knowledge of the handwriting of the supposed writer.

1417.The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting(a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
1418.The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
1419.Where a writing whose genuineness is sought to be proved is more than 30 years old, the comparison under Section 1417 or 1418 may be made with writing purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing whether it is genuine.
Evidence Code § 1420 – the context of the message shows the message was a reply from the person in questionCollateral Documents: Sometimes, a document is not directly at issue but is related to the case. In these instances, section 1420 states that the collateral document can be introduced to help prove the authenticity of the primary document. For example, a defense attorney may use a surveillance video from a nearby store to corroborate the authenticity of a defendant’s alibi in a robbery case.
1420A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.
Evidence Code § 1421 – in the message itself, the person says something that only they would knowPhone Records: In cases involving cell phone records, Section 1421 allows attorneys to use records provided by phone service providers to authenticate call logs and text messages. This may be crucial in cases related to cybercrimes or communication between individuals involved in criminal activities. A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.1421.A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing. source source source

Proof of declarant’s perception by his statement presents similar considerations when declarant is identified. People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result which would under appropriate circumstances be consistent with the rule.

Texts / Emails AS EVIDENCE:

ELECTRONICALLY STORED INFORMATION IN COURT

Text / Email Specific

ARE TEXT MESSAGES ADMISSIBLE IN COURT? AFTER AN ACCIDENT THE OTHER DRIVER ADMITTED SHE WASN’T PAYING ATTENTION. IN A TEXT LATER THE DRIVER SAID SHE WAS SORRY, THAT SHE’D BEEN ON THE CELL PHONE, AND OFFERED TO PAY OUTSIDE OF INSURANCE. NOW THAT HER INSURANCE COMPANY IS INVOLVED SHE DENIES EVERYTHING. IS THE TEXT ADMISSIBLE IN COURT?

If you watch those TV court shows you may have seen them admit texts without a thought. Remember they have to get everything in between the commercials.

In an actual court of law electronically stored information, or “ESI”, faces several tests under the rules of evidence.

ESI includes texts, emails, chat room conversations, websites and other digital postings. In court, admitting ESI requires passing these steps:

Is the electronic evidence relevant?
Can it pass the test of authenticity?
Is it hearsay?
Is the version of ESI offered the best evidence?
Is any probative value of the ESI outweighed by unfair prejudice?

The text must pass each step. Failing any one means it’s excluded. Proving relevance poses a relatively simple challenge. But meeting the authenticity requirement raises larger questions.

Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility. Showing the text came from a person’s cell phone isn’t enough. Cell phones are not always used only by the owner.

Courts generally require additional evidence confirming the texter’s identity. Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.

HEARSAY RULE AND ELECTRONICALLY STORED INFORMATION

Text messages and other ESI are hearsay by nature. The hearsay rule blocks admission of out of court statements offered to prove the truth of the matter at issue. But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non hearsay”.

Here, the text by the other driver that she wasn’t paying attention at the time of the car accident should qualify as an admission, a prior statement by the witness or a statement by a party opponent.

TEXTS AND ‘BEST EVIDENCE’ RULE

Two more layers remain in the evidentiary hurdle. ESI presents its own challenges in passing the ‘best evidence rule’ or the ‘original writing rule’. Essentially the rules require introduction of an original, a duplicate original or secondary evidence proving the version offered to the court is reliable.

The final test requires that the probative value of the evidence not be outweighed by considerations including unfair prejudice, confusion of the issues or needless presentation of cumulative evidence.

ESI AND TEXTS AS EVIDENCE: WHY SO HARD?

Sometimes the challenge isn’t as overwhelming as it seems. In a federal case in which I was involved the court addressed all five steps of the process in ten minutes and admitted a series of texts. But a federal magistrate in Maryland wrote a 101 page decision thoroughly detailing the above process, rejecting some emails.

These are the evidence issues confronting texts and any electronically stored information. But, people who fail to object to evidence waive their right to object later, including upon appeal. Evidence of all kinds sometimes sneaks in despite the rules. So, go through the analysis long before running up the courthouse steps. source

Introducing Digital Evidence in California State Courts

Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].) G. Authenticating Metadata: Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’

Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include: a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).

Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4). Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer.

Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary.

Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a 7 | Introducing Digital Evidence in California State Courts useful tool for authenticating electronic records by use of distinctive characteristics.”

(Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].) F. Challenges to Authenticity Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created. Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.”

(People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.) Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) (accessed Aug. 18, 2016). III. Hearsay Rule The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include; 1) operative facts and 2) data that is generated by a mechanized process and not a human declarant and, 3) A statement being used to show its falsity not its truth. source

Why Would Someone Need to Authenticate Text Messages for Court?

In the contemporary age of technology, digital evidence is becoming increasingly important in court. Here is how to authenticate text messages for court in California.

Text messages are unfortunately a form of digital media that can easily be photoshopped and manipulated. This puts the evidence at risk of interference or invalidity. Additionally, text messages fall under the jurisdiction of California Evidence Code Section 250, which prevents any evidence from being used without first being authenticated.

How to Introduce Digital Evidence in California State Courts

Smartphones allow endless mobile communication that can be crucial evidence for a court case. In order to present documents and electronic evidence in a California state court, the accumulation of evidence must follow the California Electronic Communication Privacy Act (CPOA). The California Electronic Communication Privacy Act protects the privacy of individuals and their electronic devices, and it requires law enforcement to receive a warrant before they can access any electronic information.

To be in compliance with the CPOA, digital evidence must prove to be necessary for furthering the case. Additionally, in order to be sustainable in court, digital evidence must meet the following four components:

It must be relevant.
It must be authenticated.
Its contents must not be inadmissible hearsay (able to be disproven as fake).
It must withstand a “best evidence” objection.

Proposed digital evidence must meet the standards of both the CPOA and the four aforementioned components. The only exceptions to the protection of privacy that the CPOA ensures are if the individual gives consent or if the exception qualifies as an emergency situation. In order to meet the requirements of an emergency circumstance, the government entity must “in good faith, believe that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information” (CPOA).

Additionally, if the evidence contains metadata, the proponents must address the metadata separately. Metadata is data about the date, for example, a time stamp on a screenshot in a text message. The proponents would need to consider the time and prepare an additional foundation for it.

The Four Components of Evidence Required Getting Authentication of Text Messages

Relevance is determined by the evidence’s ability to prove or disprove any disputed fact, including credibility. In order for digital evidence to qualify as relevant, the defendant must usually be tied to the evidence being presented. Specifically, the proponent must be able to make a connection between the defendant and either the phone number that sent or received the text.

Authentication of evidence requires the proponent to introduce sufficient evidence to hold that the writing is what they are claiming it is. To authenticate a text message it must hold that “by evidence the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the prominent of the evidence to be the author of the writing.” California Evidence Code Section 1421.

There are no published California cases that distinctly lay out the requirements for authenticating a text message, but unpublished California opinions are consistent with the rules set for authenticating emails and chats. This includes a combination of both direct and circumstantial evidence. Here are some examples of unpublished opinions from California:

The murder victim’s cell phone was recovered from the scene of the crime. The forensic tools used on the phone recovered the texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
10 of 12 text messages sent to the victim’s boyfriend from the victim’s cellular telephone following sexual assault were not properly authenticated to extent that the State’s evidence did not demonstrate that the defendant was the author of the messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].) source

Getting Authentication of Text Messages

For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.

The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.

Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.

https://herlawyer.com/text-messages-divorce-court/

he court reiterated the 5 step approach set forth by the S. Supreme Court in Neil v. Biggers409 U.S. 188, 189 (1972) for determining the reliability of in-court voice identification: (1) the ability of the witness to hear the assailant speak, (2) the witness’ degree of attention, (3) the accuracy of any prior identifications the witness made, (4) the period of time between the incident and the identification, and (5) how certain the witness was in making the identification.

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated.

(Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

(Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

Can Emails Be Used in Court?

Whether you are bringing or defending a business lawsuit, your litigation attorney has likely asked you to gather and organize relevant documents in preparation for your case. This involves anyone or any location that might have helpful information to confirm your argument.

Unfortunately, not all emails are admissible as evidence in a business litigation case. Emails can be used as admissible evidence in a court of law if they’re found to be authentic. Once they fit the criteria, the emails can be treated as legal documents.

Determining Admissibility of Electronic Evidence

A business lawyer should help you determine which electronic communications are admissible and which are not, but we’ve described two main considerations here to get you started:

Message Must Be Authentic

It may be obvious to you that a specific email or text is the real deal and came from the source you claim. However, it’s not overly difficult for someone with the right skillset to manipulate, fake, or corrupt digital data. For this reason;

Your business litigation attorney must establish authenticity first and foremost.
A litigator may gain authentication by deposing the sender or recipient of the email.
When it comes to business litigation, company emails are normally considered self-authenticating when they:
- contain official corporate identifiers, and
- are confirmed by redundant records.

Content Must Be Reliable

Even if you can prove that the communication you received is authentic, that doesn’t necessarily mean that its contents are helpful to your business lawsuit. The email in question could say the company is in breach of contract, but simply stating this, doesn’t make it true. This is considered hearsay, whether spoken, emailed, or texted. Varying degrees of admissible evidence vs. hearsay could stem from a multi-email conversation depending on the nature of the content. Consequently;

Your business attorney must prove the communication is an exception to the hearsay rule.
In a business lawsuit, communication could be considered reliable when presented as:
- Business Record:
  - the communication was created by an employer or officer of that company.
  - the communication was created by an employee of that company as one of their proven and regular official duties.
- Circumstantial Evidence:
  - the communication confirms an event or timeline
  - the communication confirms relevant actions were taken
- Party Admission:
  - the party in question is the creator/sender
  - the opposing part offered it into evidence
  - the communication was sent by a proven coconspirator

Of course, there are a variety of circumstances that could cause even emails that fall under these categories to become inadmissible. For example, if the sender was not in their right mind or if their motive is not expertly established, those emails will not hold up in court. Additionally, each state has its own laws surrounding the admissibility of electronic evidence, so the strength of your case is not always straight forward.

source

Introducing TEXT & EMAIL Digital Evidence in California Courts pdf
Obtaining Electronic Evidence in Criminal Investigations pdf

Other States outside of California High Courts CaseLaw

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases. In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video. It has location history for the phone, showing where the driver was at various points in time. It includes calls, texts and emails between the driver and the trucking company. It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

THIS STATE OF GEORGIA RECOGNIZES THE COMLEXITY OF LEGITIMACY AND HOW IT CAN IMPACT FREEDOM IS IT IS SPOOFED BY SOMEONE AND LEAD TO IMPROPER PROSECUTION

(Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)

https://law.justia.com/cases/nevada/supreme-court/2012/56413.html

After a seven-day jury trial, Kevin Rodriguez was found guilty of multiple criminal counts. Rodriquez appealed, arguing that the district court erred

(1) in overruling his objection to the admission of twelve text messages because the State failed to authenticate the messages and the messages constituted inadmissible hearsay, and
(2) in overruling his objection to the admission of DNA non-exclusion evidence because the evidence was irrelevant without supporting statistical data.

The Supreme Court affirmed, holding that the district court

(1) abused its discretion in admitting ten of the twelve text messages because the State failed to present sufficient evidence corroborating Appellant’s identity as the person who sent the ten messages, but the error was harmless; and
(2) did not abuse its discretion by admitting the relevant DNA non-exclusion evidence because, so long as it is relevant, DNA non-exclusion evidence is admissible because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant’s ability to cross-examine or offer expert witness evidence as to probative value.

This is yet another STATE SUPREME of NEVADA that clearly understands how text can be manipulated

Email Evidence

The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communications laws, and consequently, courts have had some difficulty in determining which laws, if any, apply. The predominant approach seems to be that emails prior to being sent or once received do not fall within wiretapping statute.

Take for example a case from the North Carolina Court of Appeals, Evans v. Evans, where sexually explicit emails offered by the husband in a divorce action did not violate ECPA where interception of emails was not contemporaneous with transmission.The emails were recovered from the hard drive of the family computer.

However, one Florida Court has concluded that spyware-capturing emails in a family law case did violate ECPA and admission of these emails was within the discretion of trial court.In this case, the court granted an injunction against using or disclosing the information gained.

Most spyware/keystroke capture programs remain legal, as long as they are not capturing contemporaneous transmission of communication (outside of Florida). It is not, however, wise to advise a client to use these because the law on the topic is vague. You can counsel your client to search for spyware planted by the opposing party, but often such programs are not really there.

In Gurevich v. Gurevich, a wife sought to introduce as evidence emails she obtained from her estranged husband’s email account, in a divorce proceeding.The wife contends that the husband gave her the password and never revoked her from accessing his email account.The court references CPLR 4506 Penal Law section 250.05, which states that “[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”The court took the position that even if the husband’s facts were true, the wife may have unlawfully retrieved information from his computer but there was no interception, which does not violate CPLR 4506.The emails were admissible at trial as long as the email did not violate the attorney-client privilege.

In White v. White, the wife hired a computer expert to find and copy her husband’s e-mails that were stored on the hard drive of the computer in the family home.The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage.They also determined that the access was not without authorization.

With further regard to the discovery of emails, subpoenaing internet service providers will typically only generate the sender and recipient of a message. ISP’s, like cell phone providers, often delete this information quickly. However, certain service providers retain the data. Thus, it may be worth the attempt.

Further, it is vitally important that any email evidence is obtained in an appropriate and ethical manner. In, In re: Joel B. Eisenstein, which was a litigated divorce, an attorney received emails contained privileged and confidential information after his client hacked into the opposing parties’ personal email account without permission.In particular, Husband obtained and delivered to his attorney Wife’s most current payroll documents and a list of direct examination questions e-mailed to her in preparation for trial.Attorney did not “immediately disclose the receipt of the information to opposing counsel,” but instead improperly obtained payroll information during a pre-trial settlement conference.Attorney also sent a “[t]hreatening” email to opposing counsel to “avoid an ethics complaint.”The OCDC filed an Information charging the attorney with violating Rules 4-4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4-8.4(c) and (d) for reviewing and using improperly obtained evidence; and 4-3.4(a) for unlawfully concealing a document having evidentiary value.The attorney admitted that he had viewed the information and that he did not immediately disclose his receipt of this information to the opposing party.The Missouri Supreme Court held that this was misconduct warranted such suspension of his law license, under Standards 6.1 and 6.12., for a minimum period of six months.

Email Messages and Chains

An e-mail often has attached to it the email or series of emails to which it is responding, creating an email “chain,” also known as a “string” or “thread.” Some courts have found that each email in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain.

Most email systems, for instance, allow a person forwarding an email to edit the message being forwarded. Such alteration would not be discernible to the recipient. Emails are also more prone to a kind of hearsay-within-hearsay problem: an “email chain” attaches to an email every email that came before it in a discussion. It isn’t enough to get the most recent email into evidence when that email attaches a string of previous emails. All of the prior emails may need to be separately authenticated and found admissible.

Email Attachments

A court might deem attachments to authenticated emails are themselves authenticated. However, it is important to not take this for granted at the same time. In Madison Holdings, LLC v. Punch Int’l, Plaintiffs objected to documents attached to Maes’ executed declaration filed on June 30, 2008.Specifically, Plaintiffs objected to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and two marked-up drafts of the APA, which were attachments to the email.Although these documents were not originally attached to Maes’ unexecuted declaration when it was first filed on June 13, 2008, the Court, in its discretion, allowed them.Defendants contend that Maes discovered, upon final review of the materials, that these documents were missing and, as such, produced them when he executed the declaration.Additionally, Plaintiffs contended that Defendants failed to properly authenticate the email attachments. The Court, however, disagreed. These documents were attachments to an email that was authenticated by Maes’ declaration. Accordingly, Plaintiffs objections were overruled.

Images/Photos

Images and photos are often attached to email and text communication and can present admissibility challenges. Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph.Videos are typically authenticated in the same manner as a still photograph.I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.

Under Evidence Rules 1001 through 1004, an original document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an original has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an original is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.

Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial courts admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review, but this more stringent approach is often not strictly applied. However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.

Admissibility of photographs varies, depending upon the evidentiary context and the purpose for which a photograph is offered. Courts are usually willing to tolerate some inaccuracies in a photograph so long as these are explained to the trier of fact so that they may be taken into account. However, where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps. For example, the Alaska Supreme Court, in Kaps Transport, Inc. v. Henry, stated the majority rule:

That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.

However, in Kaps, the Alaska Supreme Court excluded the photograph in question because the defendant’s accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show. In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.

Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken. but still use a common-sense case by case analysis. For example, if a photograph is offered of criminal defendants’ hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.

In cases where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. For example, the Alaska Supreme Court refused to reverse a verdict despite the trial courts admission into evidence of the defendant highway departments arguably inaccurate photographs that purported to show that an accident site was well-sanded despite the Plaintiffs contrary contentions. The time frame when these photographs were taken, relative to the time of the accident, was never precisely established but was sufficient contrary testimonial evidence by the investigating State Troopers actually at the accident establishing that photographs were inaccurate and that the road was poorly sanded. Hence, admitting these allegedly misleading photographs with an imprecise time frame was harmless error.

1. Video and Audio

Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. One of the questions we are asked more often than any other is “can you tell me if this audio or video recording has been edited?” It is always best to preserve the original recording to remove all doubt about the genuineness of the recording. In other words, the original evidence is only original if it has not been copied or cloned for analysis.

With today’s advanced audio and video editing software being readily available, it is becoming easier and easier to edit or tamper with forensic evidence. Establishing the authenticity of audio or video is extremely important when presenting admissible evidence to the court. Primeau Forensics’ examiners continue their education yearly in both audio and video forensics.

Audio authentication process:

(1) Evidence marking for later identification by the forensic expert;
(2) Physical inspection of the evidence for specific characteristics that are noted by the expert;
(3) Digital data imaging and playback optimization;
(4) Critical listening to the audio for auditory anomalies;
(5) High-resolution waveform analysis, visual inspection of sound wave formation;
(6) Narrowband spectrum analysis;
(7) Spectrographic analysis;
(8) Digital data analysis;
(9) Miscellaneous analysis based on the investigation thus far;
(10) Work notes and work product; and
(11) Creating a forensic report.

Video authentication has similarities to audio authentication in that it is always best to preserve the original recording to remove all doubt about genuineness. When the original recording is not available, the video forensic expert has to investigate several aspects of the video recording, including the metadata and hex information, to determine if a video recording has been edited. Much of the video authentication process is scientific. The video forensic expert not only investigates the elements of the video recording itself, but also investigates the way the video recording surfaced, how it was created and the type of equipment that was used to create the video recording in question.

Video authentication process:

(1) Establish that of the quality of the recording in question is acceptable and workable;
(2) Evidence marking for later identification by the forensic expert;
(3) Physical inspection of the evidence for specific characteristics that are noted by the expert;
(4) Digital data imaging and playback optimization;
(5) Examine the electronically recorded information on the digital or analogue video signal;
(6) Vector and Waveform scope analysis to detect anomalies;
(7) Miscellaneous analysis based on the investigation thus far;
(8) Work notes and work product; and
(9) Creating a forensic report.

Cell Phones and Text Messages

In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover’s wife who was intercepting phone conversations and recording voicemail messages.

The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service (SMS) messages may be worth tracking down because a lot may be said in the 224 characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.

Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.

Subpoenaing Cell Phone and Email Records

Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state. If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations. If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state.

The Stored Communications Act (SCA) imposes different levels of restrictions and protections, depending on whether the service provider at issue is providing electronic communication services or remote computing services.An “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications.And, with certain exceptions, the SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”For this restriction to apply, it must be in “electronic storage,” and it is limited to the following scenarios:

Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

Thus, the SCA only prohibits an electronic communications service from knowingly divulging communications that are either in temporary storage (such as a message waiting to be delivered) or kept for the purposes of backup protection.

On the other hand, the restrictions on “remote computing service providers,” are much broader and not limited to communications kept in temporary storage or for backup purposes.The Act defines “remote computing services” as a service which provides the public with computer storage or processing services by means of an electronic communications system.The SCA imposes the following restriction on such services:

A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service–

solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

Several courts disagree when to classify certain types of communications with respect to these two categories.As a general rule of thumb, however, it is safe to assume that if a message has not been opened by its recipient, it operates as part of an electronic communication service.If the recipient has opened and retained the message, however, it operates as a remote computing service.

Thus, in order to work with phone companies (and social media companies), you should always first check that company’s website and/or terms of service to understand their approach to responding to third-party discovery requests.Depending on a company’s terms of service and the extent of SCA protection, a service provider may be able to quash even a subpoena for relevant information. Therefore, it is best to try and first procure voluntary consent, since the SCA stipulates that a service provider may divulge communications where the originator or recipient of the communication gives their consent.Notice that the consent of the originator or recipient is required-meaning if consent is denied from one, you may be able to procure it from the other. Once this consent is obtained, there should be no trouble in procuring the relevant data from the service provider. Otherwise, attempt to seek a court order compelling the consent or a subpoena.

Keep in mind that negotiating for consent takes time and that digital information may be lost before consent can be obtained.Therefore, it is important you put the service provider on notice that you will be seeking their voluntary or compelled consent to obtain the sought-after information and request that they preserve that information for the purposes of litigation.Afterward, follow up with them and seek assurance that the information is being preserved, and offer to compensate them for any reasonable expenses incurred in preserving that information.Note that most jurisdictions hold that such a request does not create a real duty in a third-party to preserve any information.That is why it is extra important that you offer the service provider as much accommodation as you can afford to ensure their cooperation. One way around would be to obtain a preservation subpoena-but that would require that your court have jurisdiction over the non-party.However, the jurisdictional requirement harshly limits the usefulness of this strategy.

Once a subpoena has been issued, perhaps the most common defense is that it violates the rights to privacy. In State v. Clampitt,it was held that individuals have a reasonable expectation of privacy in their text messages and anything else on their phones including emails. Unlawful access to cell logs or text messages breaches that right to privacy under the Fourth Amendment, and that getting such records requires a search warrant.In this case, the police sought to get text message logs via investigative subpoenas that did not specify which particular recipient messages were needed, and which were extended each time the time period specified lapsed.This meant in effect police went through his all incoming and outgoing text messages searching for an admission or something to use against him, and if they found none, applied for an extension of the dates in the hope of getting such information.This was held to be a violation of, inter alia, his Fourth Amendment rights.

Consistent also with the ruling in Clampitt is United States v. Warshak,which spoke specifically on email messages, and held emails were similar to telephone calls and letters and, therefore, require the same protections traditionally afforded to telephone and letters under the Fourth Amendment. Third parties, such as service providers who have the capacity to monitor these communications are not compelled to hand over email and text messages without a warrant showing probable cause.

Admissibility of Email and Text Messages

Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one’s email address. This is because it is possible that anyone can send an email from someone else’s email address. Additional proof is therefore needed to establish authorship.

In Missouri, foundation requirements for the admissibility of electronic messages were laid out in State v. Harris.The court stated that there should not be assumed authenticity of the origin of the message, based on either ownership or possession of the phone.The standard is this:

[T]he proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them.

This rule was also applied in State v. Franciswhere the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them.This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number.There could also be something which shows the author wrote the message, such as a personalized signature.Mere ownership of the phone or possession, does not presume authorship of all outgoing messages.Further, for non-testifying third party texts (incoming texts), which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule.Such evidence is also only admissible to give contextual meaning to the reply.

The Missouri Court of Appeals, Eastern District in T.R.P v. B.B., recently (June 2018) confirmed the foundational requirements as stated in Harrison the authorship of the message, and highlighted that evidence of authorship can be circumstantial and need not be onerous. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message.

In What Form to Submit the Data

Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications. In United States v. Catraban,the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication.One court has even stated that the computer printouts “have a prima facie aura of reliability.”Increasingly, the only bar to admission of ESI is identifying the author and/or finding the applicable hearsay exceptions.

Similarly, in United States v. Tank, it was held that chat room transcripts and printouts, much like e-mails, could be authenticated by the testimony of one of the participants in the online chat.However, the level of proof to authenticate ESI varies from jurisdiction to jurisdiction. In People v. Charlery,there was a detective who retrieved and printed Hotmail messages. He testified as to the process of retrieval and this satisfied the authenticity requirement.Other jurisdictions will require more strenuous proof on the reliability of the computer processing system. Some jurisdictions have allowed distinctive characteristics to authenticate ESI, such as profile pictures on social media accounts.

Rules of Evidence

A common objection to ESI evidence is found under Fed. R. Evid. 901 that the material is not authentic. The attorney should then proceed to various authentication techniques. These techniques include asking the owner or creator of the account if they sent the questioned content under Fed. R. Evid. 901(b)(1); formulating requests for admission with printout of the desired communication attached; third, you can bring in an expert to testify under 901(b)(3) or maybe even 901(b)(0); fourth, you can use distinctive characteristics under 901(b)(4); and finally, you could potentially use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating electronic evidence, the practitioner should be prepared to meet the most exacting standards.

Specifically, e-mails can be authenticated by an admission secured by the author or the sender of the communication that they drafted or sent the communication. It will be given more weight to authenticity if a recipient or non-recipient of the communication had knowledge of it. Additionally, a witness with the knowledge of how the communication carrier sends and receives the information could help authenticate it, as well as information about how it might be stored.

Chat room communications or transcripts may be authenticated if the proponent demonstrates that: (1) the alleged sender had access to the appropriate computer; (2) the chats were conducted at the same time as the person in question admitted to communicate; (3) the chats were being conducted using a screen name created by the person in question; and (4) the content of the chats were similar to what the person in question admitted.

In Campbell v. State,the court upheld the admission and authentication of Facebook messages in a domestic assault case. The court asserted that Facebook presents an authentication concern that is twofold.First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate.The second concern is that any person may gain access to another person’s account by obtaining the user’s name and password.The person viewing the profile cannot be certain that the author is, in fact, the profile owner.However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, will often depend on the nature of the evidence and the circumstances of the particular case.The appellate court held that the contents of the Facebook messages provide circumstantial evidence supporting the trial court’s ruling.

In United States v. Lanzon,the court upheld the admission of instant messaging transcripts with the defendant and an undercover agent. The defendant argued that copying the instant messaging conversations into a word document altered the conversation such that they could not be authenticated.The court rejected this argument under Fed. R. Evid. 901(b)(1) stating that the proponent need only to present enough evidence to make out a prima facie case that the proffered evidence is what it purports to be.

In State of Hawaii v. Espiritu, the court considered text messages to be a ‘writing’ under Fed. R. Evid. 1002. The court found that the original messages were lost or destroyed.Nevertheless, the court concluded that the text messages were admissible via the complainant’s testimony under the state equivalent of Fed. R. Evid. 1004, finding that 1004 is ‘particularly suited for electronic evidence’ because of the many ways it can be deleted or lost.Fed. R. Evid. 1004 states that an original is not necessary and “other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.”

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Major Exceptions To The Hearsay Rule
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

New Federal Rules of Evidence

Given the unpredictability and the wide variety of results in judicial decisions concerning authenticating ESI, there have been new rules that have been adopted to supplement the rules as of December 1, 2017. Rule 902 (13) addresses some of the concerns that many have about the current rules and how they address modern day evidence such as ESI.The new Rule 902 (13) addresses Certified Records Generated by an Electronic Process or System.The specific language of the rule states:

Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

There is also a new Rule 902 (14) that has been implemented. Rule 902 (14) discusses Certified Copies of Electronic Devices, Storage Media, or Files.The specific language of the new rule states that:

Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Without a doubt, the addition of these two rules potentially allow for a more uniformed approach to authenticating electronic evidence and smoother trials where: (a) experts are utilized; and (b) there is no dispute over the authenticity of the records. There is the potential concern, however, that there is too much overlap with existing rules. Specifically, that the new rules 902(13) and 902 (14) may create problems with other provisions of 902, 901, 104 (a) and 104 (b).

Dealing with Objections

When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission; thus, authenticating a text message or e-mail may be done is much the same way as authenticating a telephone call.An e-mail may be authenticated by circumstantial evidence that allows the finder of fact to determine that the e-mail is what the proponent claims it to be.

The easiest way to authenticate the data is under FRE 901(b)(1), which allows a witness with personal knowledge to authenticate that the data is what it is claimed to be. One simple way to comply with this standard is to introduce the electronic document or evidence during a deposition and have the creator or recipient of the ESI confirm that it is genuine. This will be the strongest and simplest way to prove that your ESI evidence was not manipulated.

The possibility of alternation does not and cannot be the basis for excluding ESI as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population and is of particular importance in the professional world. A party is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are submitted to a jury. In United States v. Safavian, the court found that absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done. The take away from Safavian is that the court in most cases will recognize that manipulation is possible, but there is still the evidence that is required to show that it was. And even then, if it is not overly, convincing, courts have said that information goes to the weight of the evidence, to be considered by the trier of fact.

Evans v. Evans, 610 S.E.2d 264, 271 (N.C. Ct. App. 2005).

Id. (citing Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003).

See, O’Brien v. O’Brien, 899 So.2d 1133, 1138 (Fla. Dist. Ct. App. 2005).

Id.

Gurevich v. Gurevich, 24 Misc. 3d 808, 886 N.Y.S.2d 558 (Sup. Ct. 2009).

Id.

Id. at 560.

Id. at 562.

Id.

White v. White, 781 A.2d 85 (N.J. Super. Ch. 2001).

Id.

In re: Joel B. Eisenstein 485 S.W.3d 759, 759-761 (Mo. 2016)

Id.

Id. at 762.

Id. at 763.

Id. At 761.

Id. at 672.

Id. at 674.

O’Donnell, Beatrice. “Admissibility of Emails: Getting Then In and Keeping Them Out” Pennsylvania Law Weekly, 11 June, 2007.

O’Donnell, Beatrice. “Authenticating Email Discovery as Evidence” Atkinson Baker, 11 Dec. 2007.

Civil Case No. 4:06-cv-3560 (S.D. Mar. 31 2009)

Id.

United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981.

Saturn Manufacturing, Inc. V. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983).

572 P.2d 72 (Alaska, 1977).

Riksem v. Hollister, 96 Idaho 15, 523 P.2d 1361 (1974); Southeastern Engineering & Mfg. Co. v. Lyda, 100 Ga.App. 208, 110 S.E.2d 550 (1959).

Conner v. Tate, 130 F. Supp. 2d 1370, 1373 (N.D. Ga. 2001).

Id. at 228

Id.

18 U.S.C. § 2702(a)(1); (b)(3).

The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 228 (2013)

Id. at 229.

Id.

18 U.S.C. § 2702(a)(2).

See The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 229-230 (2013).

Id. at 230.

Id.

Id. at 237.

Id. at 233; see generally 18 U.S.C. § 2702(b) (lists various exceptions to SCA protections on customer

communications).

The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 233 (2013) (“the founder and

administrator of one of the Internet’s most popular imageboards167 testified that threads in the site’s most popular

board ‘generally speaking’ last ‘from minutes to hours to a few days at maximum.’”).

Id.

Id. at 233-234.

Id. at 234.

364 S.W. 3d 605, 610-611 (Mo. App. 2012)

Id.

Id. at 607-608.

Id.

Id. at 614.

631 F.3d 266,286 (6^th Cir.2010)

State v. Clampitt 364 S.W. 3d 605 (Mo. App. 2012)

Com. v. Koch. 39 a.3d 996, 1000 (Pa. Super.2011)

State v. Harris, 358 S.W. 3d 172,175 (Mo. App. E.D. 2011)

Id.

State v. Francis, 455 S.W. 3d 56, 70 (Mo. App. 2014)

Id. at 71.

Id.

Id.at 70.

Id.

Id. at 73.

Id.

ED105999, 5 Mo. App,2018

State v. Harris, 358 S.W. 3d 172,174 (Mo. App. E.D. 2011)

T.R.P., supra note 56.

United States v. Catrabran, 836, F.2d 453 (9^th Cir. 1988).

Id.

Canadyne-Georgia Corp. v. Bank of America, N.A., 174 F. Supp. 2d 1337, 1343 (M.D. Ga. 2001).

United States v. Tank, 200 F.3d 627, 630-31 (9^th Cir. 2000).

People v. Charlery, 2014 WL 5396166, at 4-5 (V.I. Super. Oct. 22, 2014).

Id.

Frieden, Jonathan D. & Leigh M. Murray. The Admissibility of Electronic Evidence under the Federal Rules of Evidence. 17 Rich. J.L. & Tech. 5 (2010).

Id.

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)).

Id.

Id. at 553.

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011).

Id. at 1297.

Id. at 1301.

State of Hawaii v. Espiritu, 176 P.3d 885 (Haw. 2008).

Id. at 892.

Id.

Fed. R. Evid. 902(13)

Id.

Fed. R. Evid. 902(14)

Id.

State v. Koch, 334 P.3d 280 (Idaho 2014).

Zittler, Jay M. Authentication of Electronically Stored Evidence, Including Text Messages and E-mail. 34 A.L.R.6th 253, § 3.5. (Originally published in 2008)(see Donati v. State, 84 A.3d 156 (Md. Ct. Spec. App. 2014).

United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008).

https://goodshepherdmedia.net/wp-content/uploads/2022/05/admittingsocialmediaEvidencePPT.mp4

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Federal Rules for E-Mail & Text Message Evidence in Litigation

Court Rules

Many computer and electronic discovery issues are covered by the Federal Rules of Civil Procedure. However, it is also vital to check state and local rules of civil procedure. Below are various applicable Federal Rules of Civil Procedure:

Federal Rules of Civil Procedure

Fed. R. Civ. P. 1001(1) – Writings and recordings include computers and photographic systems.

Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.

Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email, and social media. These and other miscellaneous information can be found on hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smartphones and virtually any electronic source.

request text and email evidence through the use of a Request for Production. It is certainly appropriate as well to inquire about text and email evidence through written Interrogatories. Further, a properly obtained text or email could be attached to a Request for Admission where the other party is asked to admit or deny the authenticity of the communication. It is certainly possible as well to make a request pursuant to Rule 58.01 or Federal Rule of Civil Procedure 34 for a forensic computer expert to inspect the hard drive of a computer, smartphone or tablet for relevant text or email evidence (provided that safeguards are put into play, where appropriate, for the protection of privileged and confidential communication through a special master or otherwise).

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF files taken from

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – PoliceOfficer$ Filing False Report$

We also have the Spencer v. Peters– PoliceFabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a FalsePoliceReport in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Know Your RightsClick Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Parent’s Rights & Children’s Bill of Rights

Cal State Bar PDF to read about Three Parent Law – The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn moreHERE

Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment

Retrieving Evidence / Internal Investigation Case

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports, and all other available known requests for data below:

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery RequestsOCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization FormRelease of Case Information – Click Here

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIAClick Here

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here

Epic Criminal / Civil Right$ SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on Judicial & Prosecutorial Conduct

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Rules and Regulations Governing California Landlord – Tenant Laws – California Landlord / Tenant Laws

The Truth News — Sun, 04 Feb 2024 20:24:22 +0000

Rules and Regulations Governing California Landlord – Tenant Laws

Below is a summary of rental laws in California. This article is researched and cited according to the Official California Civil Code, however, it is very important that every landlord and property manager review their state and local laws and speak with an attorney in their state for further guidance and clarification.

The California Civil Code and other reputable municipal sources were used to research this information. Resource links to the California Civil Code on Landlord-Tenant Laws and the California tenant’s handbook have been included for your convenience.

Rental laws are amended and updated by state legislation, you are advised to speak with a local housing authority and licensed attorney that specializes in landlord-tenant laws in California for a detailed interpretation of the rental laws that affect you. This article is an educational reference and does not constitute legal advice.

OFFICIAL STATE RESOURCES FOR LANDLORD-TENANT LAWS IN CALIFORNIA

California Civil Code – Hiring of Real Property Cal. Civ. Code §§ 1940-1954.1
California Civil Code – Cal. Civ. Code §§ 1961 to 1995.340
California Tenants: A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities

LAWS ABOUT SECURITY DEPOSITS

Max Security Deposit Amount: (Cal. Civ. Code § 1950.5)

Equal to 2 months rent for an unfurnished property
Equal to 3 months rent for a furnished property

Nonrefundable Security Deposit: Are not allowed (Cal. Civ. Code § 1950.5m)

Additional Move-In Fees:

Application screening fee – A landlord might charge you an application screening fee to cover the cost of obtaining information about you, like checking references and ordering a credit report. The application screening fee is not part of the security deposit. (Cal. Civ. Code § 1950.6)

New tenant processing fee – A landlord might charge you a fee to reimburse the landlord for the costs of processing you as a new tenant. For example, at the beginning of the tenancy, the landlord might charge you for providing application forms, listing the unit for rent, interviewing and screening you, and similar purposes. These kinds of fees are part of the security deposit, and may be refundable. (Cal. Civ. Code § 1950.5(b))

Security Deposit Refund Timeline: 21 days after vacancy. (Cal. Civ. Code § 1950.5g)

Move-In Inspection: No state law.

Move-Out Inspection: A landlord is required to notify the tenant in writing about his right to request a pre-move-out inspection at a reasonable time prior to a lease termination.

The pre-move-out inspection will take place prior to any final inspection a landlord will make on the vacated premise. A pre-move-out inspection gives the landlord an opportunity to point out potential security deposit deductions and allows the renter reasonable time to remedy the identified deficiencies. (Cal. Civ. Code § 1950.5f)

Legal Use of Security Deposit Funds:

Unpaid rent
Damages beyond normal wear and tear, by a renter or guest of the renter
Cleaning fees associated with returning the property to it’s pre-move in condition
Restore, repair or return the property to its pre-move in condition according to the lease agreement. (Cal. Civ. Code § 1950.5(b))

Failure to Comply with Security Deposit Laws: If a landlord mishandles a security deposit or fails to comply with security deposit laws, he may be required to pay the tenant twice the amount of the security, in addition to actual damages. (Cal. Civ. Code § 1950.5)

Additional CA Security Deposit Laws:

Tenants must receive by first-class mail, postage prepaid, a copy of an itemized statement for any deductions, and the return of any remaining portion of the security deposit. (Cal. Civ. Code § 1950.5)
Along with the itemized statement, the landlord shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises. (Cal. Civ. Code § 1950.5(g(2)))
A tenant can request that a security deposit refund be returned electronically to a bank account or financial institution. (Cal. Civ. Code § 1950.5(g(1)))
A tenant can request that the itemized account of deductions be delivered via email (Cal. Civ. Code § 1950.5(g(1)))

LAWS ABOUT RENTAL APPLICATIONS

Application Costs: A landlord may only charge an application fee that covers the actual out-of-pocket costs of gathering information for tenant screening – including credit and background reports and the reasonable value of time spent acquiring and reviewing screening data. (Cal. Civ. Code § 1950.6b)

LAWS ABOUT RENT

Increases: Landlords must provide 30 days notice if the rent increase is less than 10 percent. If the rent increase is more than 10 percent, 60 days notice is required. (Cal. Civ. Code §§ 827(b)(2-3))

Maximum charge: No state statute for maximum rent, unless the property is under local rent control jurisdiction.

Grace Period: Rent is due at the end of the month unless otherwise stated in your lease or rental agreement. A landlord can require rent be due on any day in a month as long as it says so in the lease agreement. (Cal. Civ. Code § 1947)

Late Fees: Allowed if specified in the lease, are “reasonable” and follow local rent control laws. (Handbook p. 30)

Insufficient Funds: Equal to the actual bank fee. Or a landlord can charge a flat “service” fee which is $25 for the first occurrence, and $35 for each occurrence thereafter. (Cal. Civ. Code § 1719).

Partial Rent Payments: Landlords are allowed to take the partial payment and still give a tenant an eviction notice if necessary. (Handbook, p. 30)

Payment Methods: A landlord cannot allow all rents be paid via electronic funds transfer only. They must allow tenants to pay rent by at least one form of payment that is not cash or electronic funds transfer. (Cal. Civ. Code § 1947.3)

LAWS ABOUT THE LEASE

Discrimination: Landlords are not allowed to ask any tenants or applicants about their immigration or citizenship status. Landlords are required to follow federal requirements about discrimination and may request information and documentation to determine the financial qualifications of a prospective tenant. (Cal. Civ. Code § 1940.3)

Lease Terms: Unless designated in writing, rental terms are assumed to be a month to month tenancy. (Cal. Civ. Code § 1943)

Renters Insurance: Landlords can require renters obtain renters insurance if they own a waterbed to cover possible water damage. (Cal. Civ. Code § 1940.5(a))

Lease Termination: California requires the following notice terms be met depending on the length of tenancy or the reason for termination:

Month-to-month lease, under one year: 30 days notice required by the landlord or the tenant (Cal. Civ. Code § 1946)
Month-to-month lease, over one year: 60 days notice (Cal. Civ. Code § 1946.1)
Fixed end date lease: No notice required.

Lease Termination Due to Sale of Property: A landlord can terminate a month-to-month tenancy with 30 days notice after the sale of property if certain conditions are met. A landlord cannot terminate a fix-term lease. (Cal. Civ. Code § 1946.1)

Renewals: If the lessor accepts rent from a tenant after a lease term has expired, it is thought to have renewed under the previous terms, unless the lease agreement states otherwise. (Cal. Civ. Code § 1945)

Evictions: If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court. (Handbook, p. 72)

Occupancy Limits: In order to prevent overcrowding of rental units, California has adopted the Uniform Housing Code’s occupancy requirements. A landlord can establish reasonable standards for the number of people per square feet in a rental unit, but the landlord cannot use overcrowding as a pretext for refusing to rent to tenants with children if the landlord would rent to the same number of adults. (Handbook, p. 8)

No Smoking Policy: The lease agreement is allowed to prohibit cigarette smoking and other tobacco products, as defined in Section 104556 of the Health and Safety Code, in the dwelling unit, and other interior and exterior areas. (Cal. Civ. Code § 1947.5)

Threatening a Tenant: It is illegal to use, or threaten to use, force, willful threats, or menacing conduct that interferes with a tenant’s right to quiet enjoyment for the purpose of influencing a tenant to vacate.. (Cal. Civ. Code § 1940.2)

Required Landlord Disclosures in California

As a landlord in California, you must provide your tenants with certain disclosures before they can move into your property. The following are some of them.

The following are some of the disclosures that you must provide tenants with when renting out a property in the state of California according to California landlord tenant laws:

Disclosure about lead-based paint concentrations. This is mandatory for landlords renting out units built prior to 1978.
Disclosure of any known mold.
Disclosure in the rental agreement of how utility fees are applied and how they are going to be shared among tenants in a multi-family unit.
Disclosure of asbestos. This is only mandatory for landlords with buildings built before 1979.
Disclosure of possible drug contamination where remediation is yet to be completed.
Disclosure of your tenant’s right to access the sex offender registry.
Disclosure of any planned future demolition that will have an impact on a tenancy.
Disclosure about bed bug infestation. In doing so, you must use a specific language as outlined under California law (Civ. Code §§ 1954.603).
Written information regarding bed bugs using language specified in Civ. Code §§ 1954.603.
Documentation regarding any known mold.
Disclosure on how utility fees are going to be split among renters in a multi-unit dwelling.
Knowledge of asbestos for landlords renting out units built prior to 1979.
Disclosure of any known information regarding drug contamination.
Disclosure of the tenant’s right to have access to the sex offender registry.
Providing the landlord’s contact information to the tenant

California Landlord Rights & Responsibilities

According to landlord tenant laws, landlords in California have the following rights. A right to:

Enter rented the rental unit to perform needed or requested responsibilities.
Evict a tenant for failing to observe the terms of the lease agreement.
Ask a tenant to pay a security deposit prior to moving into the rental unit.
Penalize a tenant for breaking their lease agreement early, especially if the reason for doing so is not legally justified.
Charge reasonable late fees as long as they are outlined in the lease or rental agreement.

The following are some of the responsibilities you have as a California landlord.

Give at least 24 hours advance notice prior to entering an occupied rental unit.
Provide your tenant with certain mandatory disclosures.
Not to discriminate against your tenant based on race, color, religion, sex, nationality, ancestry, marital status, or any other protected class.
Raise rent in accordance with AB 1483 of the Tenant Protection Act.
Abide by California security deposit law.
Follow the proper eviction process when evicting a tenant from their rental unit.
Respond to repair requests in a “reasonable” amount of time. This time is normally interpreted as 30 days (or sooner for emergency situations).

LAWS ABOUT LANDLORD RESPONSIBILITIES

Notice for Entry: Tenants must receive reasonable advance notice in writing before the landlord or landlord’s agent can enter a rental unit. The notice must state the date, approximate time and purpose of entry. Advance notice is not required for an emergency, when a tenant has moved or abandoned the property, if the tenant and landlord agree to entry to make repairs or supply services, or if the tenant is present and consents to the entry at that time. (Cal. Civ. Code § 1954)

Implied Warranty of Habitability: A rental unit must be fit to live in; that is, it must be habitable. In legal terms, “habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety. (Cal. Civ. Code § 1941)

Required Amenities: A building will be deemed uninhabitable if it does not have the following amenities and characteristics –

Effective waterproofing and weather protection of roof and exterior wall, including unbroken windows and doors.
Plumbing or gas facilities, maintained in good working order
A water supply that is capable of producing hot and cold water, with appropriate fixtures and connected to a sewage disposal system
Heating facilities, maintained in good working order
Electrical lighting, with wiring and electrical equipment, maintained in good working order
Building, grounds, and property that is kept clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.
An adequate number of garbage receptacles, in clean condition and good repair. The landlord must provide serviceable receptacles in good condition if they are under his control throughout the lease.
Floors, stairways, and railing maintained in good repair

(Cal. Civ. Code § 1941.1)

Heat/Water Requirements: Landlords must provide Plumbing or gas facilities, maintained in good working order; a water supply that is capable of producing hot and cold water, with appropriate fixtures and connected to a sewage disposal system; and heating facilities, maintained in good working order. (Cal. Civ. Code § 1941.1)

Security Requirements: Landlords are required to install and maintain-

An operable deadbolt on each main swinging entry door of a dwelling unit
Operable window security or locking devices on windows designed to be opened (some exclusions apply)
Locking mechanisms on exterior doors that provide access to common areas of multifamily developments.

(Cal. Civ. Code § 1941.3)

Utility Billing By the Landlord: California law does not specifically regulate how landlords bill tenants for water and sewer utilities. the landlord must reach an agreement with you, which must be in writing, about who will pay for the shared utilities. (Cal. Civ. Code § 1940.9)

LAWS ABOUT PROPERTY MAINTENANCE AND REPAIRS

Tenant Maintenance Responsibilities: Tenants are required to meet the following maintenance responsibilities under California Law, unless otherwise agreed upon in writing with the landlord –

(1) To keep that part of the premises which he occupies and uses clean and sanitary as the condition of the premises permits.
(2) To dispose from his dwelling unit of all rubbish, garbage and other waste, in a clean and sanitary manner.
(3) To properly use and operate all electrical, gas and plumbing fixtures and keep them as clean and sanitary as their condition permits.
(4) Not to permit any person on the premises, with his permission, to willfully or wantonly destroy, deface, damage, impair or remove any part of the structure or dwelling unit or the facilities, equipment, or appurtenances thereto, nor himself do any such thing.
(5) To occupy the premises as his abode, utilizing portions thereof for living, sleeping, cooking or dining purposes only which were respectively designed or intended to be used for such occupancies.

SECTION 1941.2 “TENANT’S DUTY OF HABITABILITY”

(Cal. Civ. Code § 1941.2)

Repair and Deduct: If a tenant notifies a landlord of required repairs that make the property inhabitable, and which are not the fault of the tenant, and the landlord does not act to the notice within 30 days, the tenant can perform the repairs himself and deduct the expenses from rent, as long as the repair expenses do not exceed one month’s rent. A tenant is only allowed to do this twice in a 12-month period. (Cal. Civ. Code § 1942)

LEGAL DISCLOSURE REQUIREMENTS

Murders/Death: Landlords and property managers must tell prospective tenants if a prior occupant died in the rental unit within the past three years. (Cal. Civ. Code § 1710.2)

Demolition Permit: A property owner must inform all current or future tenants when he has applied for a demolition permit. He must give written notice to prospective tenants before entering into a rental agreement with the tenant. The notice must state the earliest approximate dates that the owner expects the demolition to occur and that the tenancy will end. (Cal. Civ. Code § 1940.6)

Methamphetamine Contamination: If a property is found to be contaminated with methamphetamine, a local health officer must issue an order prohibiting the use or occupancy of the property to the property owner and all occupants. The owner must give written notice of the health officer’s order and a copy of it to potential tenants who have completed an application to rent the contaminated property. A tenant may cancel their rental agreement if the owner does not meet these requirements. (Health and Safety Code Sections 25400.10-25400.46)

Pest Control: Landlords must provide notice to tenants regarding the use of pest control on the structure by a registered structural pest control company pursuant to
Section 8538 of the Business and Professions Code, if a contract for periodic pest control service has been executed and provide notice prior to each application. (Business and Professions Code Section 8538, Cal. Civ. Code §§ 1940.8–1940.8.5)

Asbestos: Residential property built before 1981 may contain asbestos. A leading reference for landlords recommends that landlords make asbestos disclosures to tenants whenever asbestos is discovered in the rental property. (Handbook p. 23)

Former Military Ordnance Location: The landlord of a residential dwelling unit who has actual knowledge of any former federal or state ordnance locations in the neighborhood area shall give written notice to a prospective tenant of that knowledge prior to the execution of a rental agreement. In cases of tenancies in existence on January 1, 1990, this written notice shall be given to tenants as soon as practicable thereafter. (Cal. Civ. Code § 1940.7)

Mold: Landlord must disclose, prior to lease signing, knowledge of any mold in the dwelling that exceeds safety limits or poses a health concern. Landlord must distribute a State Department of Health Services consumer handbook once it is developed and approved. (Cal. Health & Safety Code § 26147 and Cal. Civ. Code § 1941.7)

Lead Paint: Federal Law requires all landlords to include a “Lead Warning Statement” in their lease for buildings built before 1978 about lead-based paint and/or potential hazards. Additionally, landlords are required to provide renters with an EPA-approved information pamphlet about lead-based paint and lead-based paint hazards.(Residential Lead-Based Paint Hazard Reduction Act, Title X)

Sexual Offenders: Landlords are required to include the following language in the lease:

“Notice: Pursuant to Section 290.46 of the Penal Code, information about specified registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.meganslaw.ca.gov. Depending on an offender’s criminal history, this information will include either the address at which the offender resides or the community of residence and zip code in which he or she resides.” (Cal. Civ. Code § 2079.10a)

RANDOM TENANT LAWS

Political Signs: Landlords cannot prohibit tenants from posting political signs as long as they meet local guidelines, are under 6 square feet in size, and are removed within a timely manner. (Cal. Civ. Code §§ 1940.4)

Waterbeds: A landlord must allow a tenant to install a water if the unit that received a valid certificate for occupancy after 1973 as long as certain conditions are met. (Cal. Civ. Code § 1940.5)

Telephone Line Access: Building owners are required to install and maintain at least one telephone jack and place and maintain necessary telephone wiring as established by the California Electrical Code and Public Utilities Commission. (Cal. Civ. Code § 1941.4)

Declaw/Devocalize Animals: Landlords cannot require their tenants’ pets to be declawed or devocalized. (Cal. Civ. Code § 1942.7)

California Tenant Rights and Responsibilities

These are some of the rights tenants have in the state of California.

A right to:

Break the lease for certain legally justified reasons, such as, when starting an active military service or for habitability violations.
Be provided with proper notice prior to entry by the landlord.
Live in peace and quiet enjoyment.
Continue occupying the property until the proper eviction process has been followed.
Reside in a habitable property.
Have repairs completed within a reasonable time frame after service of proper notice.
Exercise their housing rights, such as filing a health or safety report.
A fair tenant screening exercise.
A fair and judicial eviction process.
Be provided with certain disclosures.

When it comes to responsibilities, they are as follows:

Serve the landlord with proper notice prior to moving out.
Abide by all requirements of the lease agreement.
Respect the peace and quiet of other tenants by keeping noise levels down.
Let the landlord know of needed repairs within a reasonable time frame.
Pay rent to the landlord on time

California Landlord Rights and Responsibilities

California landlords have certain rights under the residential tenancies act. A right to:

Require tenants to sign a lease prior to moving in.
Enforce the terms of the lease or rental agreement
Evict a tenant for violating the terms of the agreement, such as nonpayment of rent.
Require tenants to pay a security deposit upon signing the rental agreement.
Enter the tenant’s rented premises after serving the proper notice.
Terminate a periodic lease agreement after providing them with the proper notice.
Be notified when a tenant is looking to leave town for an extended period of time.

The list of responsibilities that California landlords have includes the following.

A responsibility to:

Abide by all terms of the lease agreement.
Notify the tenant prior to entering their rented premises.
Notify the tenant prior to terminating their periodic agreement.
Abide by the state’s security deposit laws.
Ensure the unit abides by the state’s safety, health, and building codes.
Maintain peace and quiet.
Provide the tenant with the aforementioned mandatory disclosures.

Overview of the California Landlord Tenant Laws

Landlord’s Right to Entry

As a landlord, you have a right to enter your tenant’s rental property under landlord tenant laws. Be that as it may, you have certain obligations that you must abide by when doing so. Firstly, you must provide the tenant with a 24-hour advance notice prior to entering.

California landlords must have a legitimate reason for entry, such as, to inspect the property, to show the unit to prospective tenants, or court order. Finally, you must enter the tenant’s rented unit during normal business hours or as agreed.

The only exception to these rules is if there is an emergency.

Rent Increase

As a landlord, you must abide by AB 1483 – the Tenant Protection Act. The act limits the increase of rental rates based on inflation. It also establishes jurisdictions for local rent control.

According to the act, you must give your tenant proper written notice prior when raising the rent. If the raise is less than 10% of one month’s rent, you must give the tenant a 30 days notice.

If it is greater than 10% of one months rent, you must serve them a 60 days advance written notice.

Housing Discrimination

You have an obligation to treat your tenants equally and fairly. The Fair Housing Act prohibits any form of discrimination on the basis of a tenant’s race, color, religion, sex, familial status, nationality, and disability.

The state of California fair housing law also extends additional protection to tenants based on sexual orientation, primary language, marital status, immigration status, gender identity, mental disability, citizenship status, and income source.

Evictions in California

You can evict a tenant in California from their rental unit for the following reasons.

Unpaid of rent.
Violation of the lease or rental agreement.
When the lease comes to an end.
Foreclosure of the rental property.
Illegal use of the rental property.

It’s illegal to evict tenants on the basis of a protected class or as a retaliatory tactic. If the landlord fails to follow these eviction laws it can result in legal issues.

Warranty of Habitability

Landlords have a duty to keep their rental property in a safe and habitable condition. For instance, ensuring that the unit has running hot and cold water, and working smoke and carbon monoxide detectors.

In addition, you must respond to repair and maintenance issues within 30 days of being notified. Specifically, you must make necessary repairs within 30 days of getting written notice.

You have a responsibility to provide your tenant with a livable unit. Among other things, it must have the following amenities.

Hot and cold running water.
A working HVAC system.
Properly working plumbing and sanitation systems.
Safe stairs and railings.
Working smoke detectors.
A locking mailbox.
No mold.

If the landlord fails to provide these basics to the tenant, then the California tenant may break the rental agreement legally.

Evictions

Landlords have a right to evict a tenant for certain justifiable reasons, such as nonpayment of rent, a lease violation, and illegal activity. It is your duty to ensure the process follows the proper eviction procedure.

The following is a basic overview of the process you must follow when evicting a tenant in California.

Serve an eviction notice.
File a lawsuit if the matter remains unresolved.
Serve a copy of the summons and complaint to the tenant.
Attend the court hearing and await judgment.
Obtain a writ of possession and have the tenant evicted from the property.

Security Deposits

California law also obligates landlords to abide by certain rules when it comes to the collection of security deposits. Including:

The maximum amount to collect. You must only ask for a security deposit within two months’ rent.
What deductions you can make. You can only make deductions in certain situations. such as if the tenant moves out without clearing utility payments or for causing damage exceeding normal wear and tear.
When to return the deposit. You must return the deposit within 21 days of the tenant moving out.

Lease Termination

In a fixed-term lease, a California tenant may be able to break their lease early for the following reasons.

Active military duty.
Uninhabitable unit.
Landlord harassment.
Early lease termination clause.

Both parties, landlord and tenant, can end a rental agreement after serving proper notice. For instance, to terminate a month-to-month lease, a 30-day notice is required. For instance a 30-day notice is required to terminate a month-to-month lease.

However, a tenant must have a legally justified reason to terminate a fixed-term lease, such as active military duty, landlord harassment, and safety or health violations.

RESOURCES

EPA Approved Lead Disclosure Information on Lead-Based Paint/Hazards – SAMPLE

Section 8 Housing Guide

U.S. Department of Housing and Urban Development- Tenants Rights, Laws & Protections: California

Laws governing rental properties, landlords and tenants are primarily found in the California Civil Code (Cal. Civ. Code) Title 5 Chapter 2.

Access to the entire California Civil Code is provided by the California State Legislature’s website. Go to the California Civil Code.

This summary of landlord-tenant laws is provided to you by Rentec Direct, LLC and is thought to be true and accurate at the time of publication. It not intended to be used as legal advice for your particular problem. Please note that changes may occur and this publication may not reflect the most recent updates to the law.

Please consult an attorney familiar with landlord-tenant law in your state for any legal advice. source source source

Cal. Civ. Code § 1941

Current through the 2023 Legislative Session.

Section 1941 – Duty to put building in condition fit for human occupancy and repair subsequent dilapidations

Section Nineteen Hundred and Forty-one. The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.

Ca. Civ. Code § 1941

Amended by Code Amendments 1873-74, Ch. 612.

1941.1.

(a) A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code:

(1) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.

(2) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.

(3) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law.

(4) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order.

(5) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.

(6) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.

(7) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.

(8) Floors, stairways, and railings maintained in good repair.

(9) A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code. This subdivision shall become operative on July 1, 2008.

(b) Nothing in this section shall be interpreted to prohibit a tenant or owner of rental properties from qualifying for a utility energy savings assistance program, or any other program assistance, for heating or hot water system repairs or replacement, or a combination of heating and hot water system repairs or replacements, that would achieve energy savings.

(Amended by Stats. 2012, Ch. 600, Sec. 1. (AB 1124) Effective January 1, 2013.)

1940.8.

A landlord of a residential dwelling unit shall provide each new tenant that occupies the unit with a copy of the notice provided by a registered structural pest control company pursuant to Section 8538 of the Business and Professions Code, if a contract for periodic pest control service has been executed.

(Added by Stats. 2000, Ch. 234, Sec. 2. Effective January 1, 2001.)

1940.8.5

(a) For purposes of this section, the following terms have the following meanings:
- (1) “Adjacent dwelling unit” means a dwelling unit that is directly beside, above, or below a particular dwelling unit.
- (2) “Authorized agent” means an individual, organization, or other entity that has entered into an agreement with a landlord to act on the landlord’s behalf in relation to the management of a residential rental property.
- (3) “Broadcast application” means spreading pesticide over an area greater than two square feet.
- (4) “Electronic delivery” means delivery of a document by electronic means to the electronic address at or through which a tenant, landlord, or authorized agent has authorized electronic delivery.
- (5) “Landlord” means an owner of residential rental property.
- (6) “Pest” means a living organism that causes damage to property or economic loss, or transmits or produces diseases.
- (7) “Pesticide” means any substance, or mixture of substances, that is intended to be used for controlling, destroying, repelling, or mitigating any pest or organism, excluding antimicrobial pesticides as defined by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136(mm)).
- (8) “Licensed pest control operator” means anyone licensed by the state to apply pesticides.
(b)
- (1) A landlord or authorized agent that applies any pesticide to a dwelling unit without a licensed pest control operator shall provide a tenant of that dwelling unit and, if making broadcast applications, or using total release foggers or aerosol sprays, any tenant in an adjacent dwelling unit that could reasonably be impacted by the pesticide use with written notice that contains the following statements and information using words with common and everyday meaning:
  - (A) The pest or pests to be controlled.
  - (B) The name and brand of the pesticide product proposed to be used.
  - (C) “State law requires that you be given the following information:CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.If within 24 hours following application of a pesticide, a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed health care provider, or the California Poison Control System (1-800-222-1222).For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”
  - (D) The approximate date, time, and frequency with which the pesticide will be applied.
  - (E) The following notification:
    “The approximate date, time, and frequency of this pesticide application is subject to change.”
- (2) At least 24 hours prior to application of the pesticide to the dwelling unit, the landlord or authorized agent shall provide the notice to the tenant of the dwelling unit, as well as any tenants in adjacent units that are required to be notified pursuant to paragraph (1), in at least one of the following ways:
  - (A) First-class mail.
  - (B) Personal delivery to the tenant, someone of suitable age and discretion at the premises, or under the usual entry door of the premises.
  - (C) Electronic delivery, if an electronic mailing address has been provided by the tenant.
  - (D) Posting a written notice in a conspicuous place at the unit entry in a manner in which a reasonable person would discover the notice.
- (3) (A) Upon receipt of written notification, the tenant may agree in writing, or if notification was electronically delivered, the tenant may agree through electronic delivery, to allow the landlord or authorized agent to apply a pesticide immediately or at an agreed upon time.
  - (B)
    - (i) Prior to receipt of written notification, the tenant and the landlord or authorized agent may agree orally to an immediate pesticide application if a tenant requests that the pesticide be applied before 24-hour advance notice can be given. The oral agreement shall include the name and brand of the pesticide product proposed to be used.
    - (ii) With respect to a tenant entering into an oral agreement for immediate pesticide application, the landlord or authorized agent, no later than the time of pesticide application, shall leave the written notice specified in paragraph (1) in a conspicuous place in the dwelling unit, or at the entrance of the unit in a manner in which a reasonable person would discover the notice.
    - (iii) If any tenants in adjacent dwelling units are also required to be notified pursuant to this subdivision, the landlord or authorized agent shall provide those tenants with this notice as soon as practicable after the oral agreement is made authorizing immediate pesticide application, but in no case later than commencement of application of the pesticide.
- (4)
  - (A) This subdivision shall not be construed to require an association, as defined in Section 4080, to provide notice of pesticide use in a separate interest, as defined in Section 4185, within a common interest development, as defined in Section 4100.
  - (B) Notwithstanding subparagraph (A), an association, as defined in Section 4080, that has taken title to a separate interest, as defined in Section 4185, shall provide notification to tenants as specified in this subdivision.
(c)
- (1) A landlord or authorized agent that applies any pesticide to a common area without a licensed pest control operator, excluding routine pesticide applications described in subdivision (d), shall post written notice in a conspicuous place in the common area in which a pesticide is to be applied that contains the following statements and information using words with common and everyday meaning:
  - (A) The pest or pests to be controlled.
  - (B) The name and brand of the pesticide product proposed to be used.
  - (C) “State law requires that you be given the following information:CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.If within 2 hours following application of a pesticide, a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed health care provider, or the California Poison Control System (1-800-222-1222).For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”
  - (D) The approximate date, time, and frequency with which the pesticide will be applied.
- (2)
  - (A) The notice shall be posted before a pesticide application in a common area and shall remain posted for at least 24 hours after the pesticide is applied.
  - (B) Landlords and their authorized agents are not liable for any notice removed from a common area without the knowledge or consent of the landlord or authorized agent.
  - (C) If the pest poses an immediate threat to health and safety, thereby making compliance with notification prior to the pesticide application required in subparagraph (A) unreasonable, a landlord or authorized agent shall post the notification as soon as practicable, but not later than one hour after the pesticide is applied.
- (3) If a common area lacks a suitable place to post a notice, then the landlord shall provide the notice to each dwelling unit in at least one of the following ways:
  - (A) First-class mail.
  - (B) Personal delivery to the tenant, someone of suitable age and discretion at the premises, or under the usual entry door of the premises.
  - (C) Electronic delivery, if an electronic mailing address has been provided by the tenant.
  - (D) Posting a written notice in a conspicuous place at the unit entry in a manner in which a reasonable person would discover the notice.
- (4) This subdivision shall not be construed to require any landlord or authorized agent, or an association, as defined in Section 4080, to provide notice of pesticide use in common areas within a common interest development, as defined in Section 4100.
(d)
- (1) A landlord or authorized agent that routinely applies pesticide in a common area on a set schedule without a licensed pest control operator shall provide a tenant in each dwelling unit with written notice that contains the following statements and information using words with common and everyday meaning:
  - (A) The pest or pests to be controlled.
  - (B) The name and brand of the pesticide product proposed to be used.
  - (C) “State law requires that you be given the following information:CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.If within 24 hours following application of a pesticide, a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed health care provider, or the California Poison Control System (1-800-222-1222).For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”
  - (D) The schedule pursuant to which the pesticide will be routinely applied.
- (2)
  - (A) The landlord or authorized agent shall provide the notice to both of the following:
    - (i) Existing tenants prior to the initial pesticide application.
    - (ii) Each new tenant prior to entering into a lease agreement.
  - (B) The landlord or authorized agent shall provide the notice to the tenant in at least one of the following ways:
    - (i) First-class mail.
    - (ii) Personal delivery to the tenant, someone of suitable age and discretion at the premises, or under the usual entry door of the premises.
    - (iii) Electronic delivery, if an electronic mailing address has been provided by the tenant.
    - (iv) Posting a written notice in a conspicuous place at the unit entry in a manner in which a reasonable person would discover the notice.
  - (C) If the pesticide to be used is changed, a landlord or authorized agent shall provide a new notice pursuant to paragraph (1).
  - (D) This subdivision shall not be construed to require any landlord or authorized agent, or an association, as defined in Section 4080, to provide notice of pesticide use in common areas within a common interest development, as defined in Section 4100.
(e) Nothing in this section abrogates the responsibility of a registered structural pest control company to abide by the notification requirements of Section 8538 of the Business and Professions Code.
(f) Nothing in this section authorizes a landlord or authorized agent to enter a tenant’s dwelling unit in violation of Section 1954.
(g) If a tenant is provided notice in compliance with this section, a landlord or authorized agent is not required to provide additional information, and the information shall be deemed adequate to inform the tenant regarding the application of pesticides.

(Added by Stats. 2015, Ch. 278, Sec. 2. (SB 328) Effective January 1, 2016.)

1940.9.

(a) If the landlord does not provide separate gas and electric meters for each tenant’s dwelling unit so that each tenant’s meter measures only the electric or gas service to that tenant’s dwelling unit and the landlord or his or her agent has knowledge that gas or electric service provided through a tenant’s meter serves an area outside the tenant’s dwelling unit, the landlord, prior to the inception of the tenancy or upon discovery, shall explicitly disclose that condition to the tenant and shall do either of the following:
- (1) Execute a mutual written agreement with the tenant for payment by the tenant of the cost of the gas or electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit.
- (2) Make other arrangements, as are mutually agreed in writing, for payment for the gas or electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit. These arrangements may include, but are not limited to, the landlord becoming the customer of record for the tenant’s meter, or the landlord separately metering and becoming the customer of record for the area outside the tenant’s dwelling unit.
(b) If a landlord fails to comply with subdivision (a), the aggrieved tenant may bring an action in a court of competent jurisdiction. The remedies the court may order shall include, but are not limited to, the following:
- (1) Requiring the landlord to be made the customer of record with the utility for the tenant’s meter.
- (2) Ordering the landlord to reimburse the tenant for payments made by the tenant to the utility for service to areas outside of the tenant’s dwelling unit. Payments to be reimbursed pursuant to this paragraph shall commence from the date the obligation to disclose arose under subdivision (a).
(c) Nothing in this section limits any remedies available to a landlord or tenant under other provisions of this chapter, the rental agreement, or applicable statutory or common law.
(Added by Stats. 1989, Ch. 861, Sec. 1.)

SECTION 1941.2 “TENANT’S DUTY OF HABITABILITY”

A landlord may not be responsible for repairing damages or dilapidation if the tenant is in substantial violations of his/her affirmative obligation under the law. The tenant, in good faith, shall:

• Properly operate all electrical, gas and plumbing fixtures, and keep them clean and sanitary.

• Not “willfully or wantonly destroy, deface, damage or impair any part of the structure or dwelling unit or the facilities, equipment or appurtenances thereto,” nor permit any other person to do this.

• Only use parts of the dwelling “for living, sleeping, cooking or dining…which are respectively designed or intended to be used for such occupancies.”

• Dispose of “all rubbish, garbage and other waste, in a clean and sanitary manner.”

• Keep that part of the premises which she occupies clean and sanitary “as the condition of the premises permits.”

1941.3.

(a) On and after July 1, 1998, the landlord, or his or her agent, of a building intended for human habitation shall do all of the following:
- (1) Install and maintain an operable dead bolt lock on each main swinging entry door of a dwelling unit. The dead bolt lock shall be installed in conformance with the manufacturer’s specifications and shall comply with applicable state and local codes including, but not limited to, those provisions relating to fire and life safety and accessibility for the disabled. When in the locked position, the bolt shall extend a minimum of¹³/₁₆ of an inch in length beyond the strike edge of the door and protrude into the doorjamb.This section shall not apply to horizontal sliding doors. Existing dead bolts of at least one-half inch in length shall satisfy the requirements of this section. Existing locks with a thumb-turn deadlock that have a strike plate attached to the doorjamb and a latch bolt that is held in a vertical position by a guard bolt, a plunger, or an auxiliary mechanism shall also satisfy the requirements of this section. These locks, however, shall be replaced with a dead bolt at least ¹³/₁₆ of an inch in length the first time after July 1, 1998, that the lock requires repair or replacement.Existing doors which cannot be equipped with dead bolt locks shall satisfy the requirements of this section if the door is equipped with a metal strap affixed horizontally across the midsection of the door with a dead bolt which extends ¹³/₁₆ of an inch in length beyond the strike edge of the door and protrudes into the doorjamb. Locks and security devices other than those described herein which are inspected and approved by an appropriate state or local government agency as providing adequate security shall satisfy the requirements of this section.
- (2) Install and maintain operable window security or locking devices for windows that are designed to be opened. Louvered windows, casement windows, and all windows more than 12 feet vertically or six feet horizontally from the ground, a roof, or any other platform are excluded from this subdivision.
- (3) Install locking mechanisms that comply with applicable fire and safety codes on the exterior doors that provide ingress or egress to common areas with access to dwelling units in multifamily developments. This paragraph does not require the installation of a door or gate where none exists on January 1, 1998.
  - (b) The tenant shall be responsible for notifying the owner or his or her authorized agent when the tenant becomes aware of an inoperable dead bolt lock or window security or locking device in the dwelling unit. The landlord, or his or her authorized agent, shall not be liable for a violation of subdivision (a) unless he or she fails to correct the violation within a reasonable time after he or she either has actual notice of a deficiency or receives notice of a deficiency.
  - (c) On and after July 1, 1998, the rights and remedies of tenant for a violation of this section by the landlord shall include those available pursuant to Sections 1942, 1942.4, and 1942.5, an action for breach of contract, and an action for injunctive relief pursuant to Section 526 of the Code of Civil Procedure. Additionally, in an unlawful detainer action, after a default in the payment of rent, a tenant may raise the violation of this section as an affirmative defense and shall have a right to the remedies provided by Section 1174.2 of the Code of Civil Procedure.
  - (d) A violation of this section shall not broaden, limit, or otherwise affect the duty of care owed by a landlord pursuant to existing law, including any duty that may exist pursuant to Section 1714. The delayed applicability of the requirements of subdivision (a) shall not affect a landlord’s duty to maintain the premises in safe condition.
  - (e) Nothing in this section shall be construed to affect any authority of any public entity that may otherwise exist to impose any additional security requirements upon a landlord.
  - (f) This section shall not apply to any building which has been designated as historically significant by an appropriate local, state, or federal governmental jurisdiction.
  - (g) Subdivisions (a) and (b) shall not apply to any building intended for human habitation which is managed, directly or indirectly, and controlled by the Department of Transportation. This exemption shall not be construed to affect the duty of the Department of Transportation to maintain the premises of these buildings in a safe condition or abrogate any express or implied statement or promise of the Department of Transportation to provide secure premises. Additionally, this exemption shall not apply to residential dwellings acquired prior to July 1, 1997, by the Department of Transportation to complete construction of state highway routes 710 and 238 and related interchanges.

(Added by Stats. 1997, Ch. 537, Sec. 1. Effective January 1, 1998.)

1954.

(a) A landlord may enter the dwelling unit only in the following cases:

(1) In case of emergency.

(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

(5) For the purposes set forth in Chapter 2.5 (commencing with Section 1954.201).

(6) To comply with the provisions of Article 2.2 (commencing with Section 17973) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code.

(b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(d) (1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

(2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

(3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.

(e) No notice of entry is required under this section:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

(Amended by Stats. 2018, Ch. 445, Sec. 1. (SB 721) Effective January 1, 2019.)

8538.

(a) A registered structural pest control company shall provide the owner, or owner’s agent, and tenant of the premises for which the work is to be done with clear written notice which contains the following statements and information using words with common and everyday meaning:
- (1) The pest to be controlled.
- (2) The pesticide or pesticides proposed to be used and the active ingredient or ingredients.
- (3) “State law requires that you be given the following information: CAUTION—PESTICIDES ARE TOXIC CHEMICALS. Structural Pest Control Companies are registered and regulated by the Structural Pest Control Board, and apply pesticides which are registered and approved for use by the Department of Pesticide Regulation and the United States Environmental Protection Agency. Registration is granted when the state finds that, based on existing scientific evidence, there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.“If within 24 hours following application you experience symptoms similar to common seasonal illness comparable to the flu, contact your physician or poison control center (telephone number) and your pest control company immediately.” (This statement shall be modified to include any other symptoms of overexposure which are not typical of influenza.)“For further information, contact any of the following: Your Pest Control Company (telephone number); for Health Questions—the County Health Department (telephone number); for Application Information—the County Agricultural Commissioner (telephone number), and for Regulatory Information—the Structural Pest Control Board (telephone number and address).”
- (4) If a contract for periodic pest control has been executed, the frequency with which the treatment is to be done.
(b) In the case of Branch 1 applications, the notice prescribed by subdivision (a) shall be provided at least 48 hours prior to application unless fumigation follows inspection by less than 48 hours.
In the case of Branch 2 or Branch 3 registered company applications, the notice prescribed by subdivision (a) shall be provided no later than prior to application.
In either case, the notice shall be given to the owner, or owner’s agent, and tenant, if there is a tenant, in at least one of the following ways:
- (1) First-class or electronic mail, if an electronic mail address has been provided.
- (2) Posting in a conspicuous place on the real property.
- (3) Personal delivery.If the building is commercial or industrial, a notice shall be posted in a conspicuous place, unless the owner or owner’s agent objects, in addition to any other notification required by this section.The notice shall only be required to be provided at the time of the initial treatment if a contract for periodic service has been executed. If the pesticide to be used is changed, another notice shall be required to be provided in the manner previously set forth herein.
(c) Any person or licensee who, or registered company which, violates any provision of this section is guilty of a misdemeanor punishable as set forth in Section 8553.

(Amended by Stats. 2015, Ch. 303, Sec. 14. (AB 731) Effective January 1, 2016.)

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$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – PoliceOfficer$ Filing False Report$

We also have the Spencer v. Peters– PoliceFabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a FalsePoliceReport in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

Know Your RightsClick Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS **INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)**

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$