CivPro DayOne and reading for day two Class notes for week two

1 How it is that different choices can affect the strategic advantage 2 How rules are applied to the doctrine 3 Understand what policies motivate a particular rule that has been drafted 4 ex parte (eks pahr-tee), adv. [Latin "from the part"] (18c) On or from one party only, usu. without notice to or argument from the adverse party <the judge conducted the hearing ex parte>. 5 US v Hall

Civil contempt is remedial and essentially released when subject of the order complies with the court's original order. Criminal contempt is punitive, poses unconditional penalty for retrospectively completed act. Distinction not important in this class. Was Eric hall served with injunction? No. Court ordered to serve but wasn't. He learned through another member of the group. In Rem, classically used for property. in rem (in rem), adj. [Latin "against a thing"] (18c) Involving or determining the status of a thing, and therefore the rights of persons generally with respect to that thing. Also termed (archaically) impersonal. See action in rem under ACTION (4). Cf. IN PERSONAM. [Cases: Admiralty 48; Courts 16.] in rem, adv. Page 16 in rem injunctions show that courts have... "The in rem injunction protects the court's judgment." Rule sixty five d does not define the scope of our powers. Codifies but does not limit. The rules do not restrict the courts inherent power to protect its ability to render judgments.

6 How lawyers and judges manipulate the rules 7 Jurisdiction: power of the court. 8 What does this court tells us about court's power and limits and what the rules can and cannot provide 9 terms: ~p.186-...

subject matter jurisdiction personal matter jurisdiction concurrent subject matter jurisdiction: unless Congress grants exclusivity to the federal court system (Sherman Anti-Trust Act), there is concurrent subject matter jurisdiction and the plaintiff has its choice of state or federal courts exclusive subject matter jurisdiction proper venue notification long-arm statute: service of process: defendant is "served" the complaint joinder of claims: negligence and battery causes of action joinder of parties: sue Sally and Doctor motion to dismiss: failure to state a claim upon which relief can be granted. Cognizability compulsory or permissive counterclaims: slanders burden of production p. 188 burden of persuasion renewed judgement as a matter of law or JNOV, judgement not withstanding the verdict p. 191 - 28 U.S.C. 1292(b) - interlocutory appeal: motion to dismiss for improper venue denied allowed if: question of law question is controlling substantial groudns for a difference of opinion immediate appeal materially advances the ultimate termination of litigation res judicata - "a matter judged" claim preclusion, can't split claim issue preclusion - example of promissory note not being paid, if valid in first case and continues not to pay doesn't have to prove validity of note again

10 has three burdens: plead correctly in the complaint, meet the production burden (produce prima facie case), meet the persuasion burden (convince the finder of fact) 11 Claims, causes of action and elements

cause of action: claim showing that the pleaders is entitled to relief FRCP 7,8,9 lay out the requirements for a fed complaint 12(b)(6) describes the motion that a defendant may bring to challenge whether the plaintiff's complaint correctly describes a claim for which relief can be granted

12 FRCP became law in 1938, Professor Charles E. Clark, principal draftsman, subsequent judge on US Ct of Appeals 2nd Circuit 13 FRCP 65 Injunctions and Restraining Orders 14 The right to be heard: elements ad history of due process 15 P. 19 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)

Three organizations challenege Attorney General of US decision to list them as communist and to furnish to US Civil Service Commission. They claimed action was taken without notice to them. The S.C. majority interpreted "due process" to require organizations to be heard. Six separate opinions. Justice Frankfurter: "arriving at truth"; "generating the feeling . . . that justice has been done p.19 Perception of justice particularly important in this societal climate Pejorative label underpins the need to provide dues process. Society was fragmenting. Due process always on exam. No black and white answer.

16 Goldberg v. Kelly January 26, 1968

Background: Before this case fed and state welfare laws had allowed benefits to be terminated as soon as a caseworker determined that the recipient was ineligible. Sometimes caseworkers used the threat of termination to shake up recipients. Caseworkers wielded a great deal of power over recipients. Public assistance had to fit the predicates of "life, liberty, or property"

The Complaint: 1983 Civil action for deprivation of rights Title 42 301 Social Security class action rule 23 FRCP aid terminated without notice and hearing acede to demand for which there is no basis in law Advocacy tool. Thats why it was so long. Gaining sympathy to frame the judges understanding of the case. Media coverage is important. p.25 "plaintiffs respectfully pray . . . that this Court:" The Supreme Court's Response, 1970 Justice Brennan NYC made changes allowing for 7 day notice plus post review of eligibility. Appellees challenge this procedure in the absence of any provisions for personal appearance before the decision is made. That is the issue Action brought under the 14th amendment. Why not the fifth? need to concentrate upon finding the means for daily subsis tence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. Issue is whether there was minimum procedural protection in the form of appearing. Not whether entitled to benefits or not. Why is the pre-termination action required? Deprivation, from section 1 of the Amendment XIV. Notice is seven days. Court says not gonna question, leaves alone. What type of notice is adequate? Letter. Opp to be heard. Majority says must be tailored to the capacity and circumstances of those to be heard. Page 31. Why an oral presentation. Provides flexibility to mold arguments and enables decision maker to make a credibility decision. Also tied to literacy. Tomorrow into next material. Read all of tomorrow's unit but won't finish.

17 List of ideal set of protections

17.1 Sufficiently low cost so that economic status doesn't pose a barrier to anyone 17.2 Provide sufficient advance price of a claim against a person in a language that the person understands 17.3 4. Genuine opportunity to present claims arguments and defenses before a decision has been made. 17.4 5. Access to a representative that can frame a claims arguments that a litigant has. 17.5 6. Decision is based solely on the material that was presented to the decision maker and everyone should have access to it. Not secret or external like hearsay. 17.6 7. When issuing decision there is notice and reasoning. 17.7 8. Transcript of proceedings. 17.8 9. Decision is in line with consistent norms and not previously existing norms. No ex post facto. Prospective not retroactive. 17.9 10. Right to a jury of your peers. 17.10 Minimal protections 17.10.1 Genuine opportunity to present arguments... Decision to be heard 17.10.2 In person, written, teleconference, email. Opportunity to present claims, arguments and defenses. 17.10.3 Reason for determination be written in the opinion. Decision maker has to be impartial.

18 P. 37 Tyler and Lind. One way to think of values that should be relevant when looking at due process issues. 4. Effectuation value 5. Perception of fairness that results when folks are able to participate in a process. 19 Mathews v Eldridge Social Security requires that you have worked. Welfare doesn't require that.

Seeking pre termination hearing Factors 1. Private interest: uninterrupted receipt of money. 2. Risk of error. Added benefit of addl procedures 3. Burden on government Only difference between this and Goldberg is the personal appearance. What is the importance of the reversal rate. READ THE DAMN CASE! P. 46 main criticism. Focused more on technique, neglecting value. Want value controls? Dignity, financial? Extent to which one could think about due process protections against adverse actions.

20 Tomorrow, briefly talk about popla, not a lot of time on Hamdi. In class practice exercise. Then Fridays class. 21 Hamdi wants a hearing. Govt wants: to detain him indefinitely until access to counsel is warranted. Some evidenc is warranted. Justifications, factual. Modern test of Eldridge.