Requirement for Due Process of Law, Form #05.045 (OFFSITE LINK)-SEDM
Black's Law Dictionary, Sixth Edition, p. 500:
Due process of law.
Law in its regular course of administration through courts of
justice. Due process of
law in each particular case means such an exercise of the powers of
the government as the settled maxims of law permit and sanction, and
under such safeguards for the protection of individual rights as those
maxims prescribe for the class of cases to which the one in question
belongs. A course
of legal proceedings according to those rules and principles which have
been established in our systems of jurisprudence for the enforcement
and protection of private rights.
To give such proceedings any validity, there must be a tribunal
competent by its constitution—that is, by the law of the creation—to
pass upon the subject-matter of the suit;
and, if that involves merely a determination of the personal
liability of the defendant, he must be brought within its jurisdiction
by service of process within the state, or his voluntary appearance.
Pennoyer v. Neff, 96 U.S. 733, 24 L.Ed. 565.
Due process of law implies the right of the person affected thereby
to be present before the tribunal which pronounces judgment upon the
question of life, liberty, or property, in its most comprehensive sense;
to be heard, by testimony or otherwise, and to have the right of controverting,
by proof, every material fact which bears on the question of right in
the matter involved.
any question of fact or liability be conclusively be presumed [rather
than proven] against him, this is not due process of law.
An orderly proceeding wherein a person with notice, actual or constructive,
and has an opportunity to be heard and to enforce and protect his rights
before a court having the power to hear and determine the case.
Kazubowski v. Kazubowski, 45 Ill.2d 405, 259 N.E.2d 282, 290.
Phrase means that no person shall be deprived of life, liberty,
property or of any right granted him by statute, unless matter involved
first shall have been adjudicated against him upon trial conducted according
to established rules regulating judicial proceedings, and it forbids
condemnation without a hearing.
Pettit v. Penn, LaApp., 180 So.2d 66, 69.
The concept of “due process of law” as it is embodied in the
Fifth Amendment demands that a law shall not be unreasonable, arbitrary,
or capricious and that the means selected shall have a reasonable and
substantial relation to the object being sought.
U.S. v. Smith, D.C.Iowa, 249 F.Supp. 515, 516.
Fundamental requisite of “due process of law” is the opportunity
to be heard, to be aware that a matter is pending, to make an informed
choice whether to acquiesce or contest, and to assert before the appropriate
decision-making body the reasons for such choice.
Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 F.Supp. 1044,
1084. Aside from all else,
“due process” means fundamental fairness and substantial justice.
Vaughn v. State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 883.
Embodied in the due process concept are the basic rights of a defendant
in criminal proceedings and the requisites for a fair trial.
These rights and requirements have been expanded by Supreme Court
decisions and include, timely notice of a hearing or trial which informs
the accused of the charges against him or her; the opportunity to confront
accusers and to present evidence on one’s own behalf before an impartial
jury or judge; the presumption of innocence under which guilt
must be proven by legally obtained evidence and the verdict
must be supported by the evidence presented; rights at the earliest
stage of the criminal process; and the guarantee that an individual
will not be tried more than once for the same offence (double jeopardy).
Law Dictionary, Sixth Edition, p. 500]
Due Process Under the Federal Constitution, Lucius McGehee (OFFSITE LINK)
Tax Deposition Questions and evidence (derived from We The
People Questions) related to Due Process of Law:
Annotated Constitution, Fifth Amendment: DUE PROCESS
Annotated Constitution, Fourteenth Amendment: DUE PROCESS
Due Process of Law
The Development of Substantive Due Process
Liberty of Contract
Regulation of Business Enterprises: Rates, Charges, and Conditions
Judicial Review of Publicly Determined Rates and Charges
Regulation of Public Utilities (Other Than Rates)
Regulation of Corporations, Business, Professions, and Trades
Protection of State Resources
Ownership of Real Property: Limitations, Rights
Health, Safety, and Morals
Vested Rights, Remedial Rights, Political Candidacy
Control of Local Units of Government
Jurisdiction to Tax
Procedure in Taxation
Substantive Due Process and Noneconomic Liberty
Procedural Due Process: Civil
Procedural Due Process: Criminal
United States v. Goodwin, 457 U.S. 368 (1982)
To punish a person because he has done
what the law plainly allows him to do is a due process violation
"of the most basic sort." Bordenkircher v. Hayes,
434 U.S. 357, 363 . In a series of cases beginning
with North Carolina v. Pearce and culminating in Bordenkircher v.
Hayes, the Court has recognized this basic - and itself uncontroversial
- principle. For while an individual certainly may be penalized
for violating the law, he just as certainly may not be punished
for exercising a protected statutory or constitutional right.
The imposition of punishment is the very purpose
of virtually all criminal proceedings. The presence of a punitive
[457 U.S. 368, 373]
motivation, therefore, does not provide an adequate
basis for distinguishing governmental action that is fully justified
as a legitimate response to perceived criminal conduct from governmental
action that is an impermissible response to noncriminal, protected
activity. Motives are complex and difficult to prove. As a result,
in certain cases in which action detrimental to the defendant has
been taken after the exercise of a legal right, the Court has found
it necessary to "presume" an improper vindictive motive. Given the
severity of such a presumption, however - which may operate in the
absence of any proof of an improper motive and thus may block a
legitimate response to criminal conduct - the Court has done so
only in cases in which a reasonable likelihood of vindictiveness
In North Carolina v. Pearce, the Court held that
neither the Double Jeopardy Clause nor the Equal Protection Clause
prohibits a trial judge from imposing a harsher sentence on retrial
after a criminal defendant successfully attacks an initial conviction
on appeal. The Court stated, however, that "[i]t can hardly be doubted
that it would be a flagrant violation [of the Due Process Clause]
of the Fourteenth Amendment for a state trial court to follow an
announced practice of imposing a heavier sentence upon every reconvicted
defendant for the explicit purpose of punishing the defendant for
his having succeeded in getting his original conviction set aside."
395 U.S., at 723 -724. The Court continued:
"Due process of law, then, requires that
vindictiveness against a defendant for having successfully attacked
his first conviction must play no part in the sentence he receives
after a new trial. And since the fear of such vindictiveness
may unconstitutionally deter a defendant's exercise of the right
to appeal or collaterally attack his first conviction, due process
also requires that a defendant be freed of apprehension of such
[457 U.S. 368, 374] motivation on the part
of the sentencing judge." Id., at 725.
In order to assure the absence of such a motivation,
the Court concluded:
"[W]henever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for
his doing so must affirmatively appear. Those reasons must be
based upon objective information concerning identifiable conduct
on the part of the defendant occurring after the time of the
original sentencing proceeding. And the factual data upon which
the increased sentence is based must be made part of the record,
so that the constitutional legitimacy of the increased sentence
may be fully reviewed on appeal." Id., at 726.
In sum, the Court applied a presumption of vindictiveness,
which may be overcome only by objective information in the record
justifying the increased sentence. 5
In Blackledge v. Perry,
417 U.S. 21 , the Court confronted the problem of increased
punishment upon retrial after appeal in a setting different from
that considered in Pearce. Perry was convicted of assault in an
inferior court having exclusive jurisdiction for the trial of misdemeanors.
The court imposed a 6-month sentence. Under North Carolina law,
Perry had an absolute right to a trial de novo in the Superior Court,
which possessed felony jurisdiction. After Perry filed his notice
of appeal, the prosecutor obtained a felony indictment charging
him with assault with a deadly weapon. Perry pleaded guilty to the
felony and was sentenced to a term of five to seven years in prison.
In reviewing Perry's felony conviction and increased
sentence, 6 this Court first stated
the essence of the holdings in Pearce and the cases that had followed
"The lesson that emerges from Pearce, Colten,
and Chaffin is that the Due Process Clause is not offended by
all possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood of
417 U.S., at 27 .
The Court held that the opportunities for vindictiveness
in the situation before it were such "as to impel the conclusion
that due process of law requires a rule analogous to that of the
Pearce case." Ibid. It explained:
[457 U.S. 368, 376]
"A prosecutor clearly has a considerable
stake in discouraging convicted misdemeanants from appealing
and thus obtaining a trial de novo in the Superior Court, since
such an appeal will clearly require increased expenditures of
prosecutorial resources before the defendant's conviction becomes
final, and may even result in a formerly convicted defendant's
going free. And, if the prosecutor has the means readily at
hand to discourage such appeals - by `upping the ante' through
a felony indictment whenever a convicted misdemeanant pursues
his statutory appellate remedy - the State can insure that only
the most hardy defendants will brave the hazards of a de novo
trial." Id., at 27-28.
The Court emphasized in Blackledge that it did
not matter that no evidence was present that the prosecutor had
acted in bad faith or with malice in seeking the felony indictment.
7 As in Pearce, the Court held that
the likelihood of vindictiveness justified a presumption that would
free defendants of apprehension of such a retaliatory motivation
on the part of the prosecutor. 8
Both Pearce and Blackledge involved the defendant's
exercise of a procedural right that caused a complete retrial after
he had been once tried and convicted. The decisions in these cases
reflect a recognition by the Court of the institutional bias inherent
in the judicial system against the retrial of issues that have already
been decided. The doctrines of stare decisis, res judicata, the
law of the case, and double jeopardy all are based, at least in
part, on that deep-seated bias. [457 U.S. 368, 377] While none of
these doctrines barred the retrials in Pearce and Blackledge, the
same institutional pressure that supports them might also subconsciously
motivate a vindictive prosecutorial or judicial response to a defendant's
exercise of his right to obtain a retrial of a decided question.
In Bordenkircher v. Hayes,
434 U.S. 357 , the Court for the first time considered an allegation
of vindictiveness that arose in a pretrial setting. In that case
the Court held that the Due Process Clause of the Fourteenth Amendment
did not prohibit a prosecutor from carrying out a threat, made during
plea negotiations, to bring additional charges against an accused
who refused to plead guilty to the offense with which he was originally
charged. The prosecutor in that case had explicitly told the defendant
that if he did not plead guilty and "save the court the inconvenience
and necessity of a trial" he would return to the grand jury to obtain
an additional charge that would significantly increase the defendant's
potential punishment. 9 The defendant
refused to plead guilty and the prosecutor obtained the indictment.
It was not disputed that the additional charge was justified by
the evidence, that the prosecutor was in possession of this evidence
at the time the original indictment was obtained, and that the prosecutor
sought the additional charge because of the accused's refusal to
plead guilty to the original charge.
In finding no due process violation, the Court
in Bordenkircher considered the decisions in Pearce and Blackledge,
"In those cases the Court was dealing with
the State's unilateral imposition of a penalty upon a defendant
who had chosen to exercise a legal right to attack his original
conviction - a situation `very different from the give-and-take
[457 U.S. 368,
378] negotiation common in plea bargaining
between the prosecution and defense, which arguably possess
relatively equal bargaining power.' Parker v. North Carolina,
397 U.S. 790, 809 (opinion of BRENNAN, J.)."
434 U.S., at 362 .
The Court stated that the due process violation
in Pearce and Blackledge "lay not in the possibility that a defendant
might be deterred from the exercise of a legal right . . . but rather
in the danger that the State might be retaliating against the accused
for lawfully attacking his conviction."
434 U.S., at 363 .
The Court held, however, that there was no such
element of punishment in the "give-and-take" of plea negotiation,
so long as the accused "is free to accept or reject the prosecution's
offer." Ibid. The Court noted that, by tolerating and encouraging
the negotiation of pleas, this Court had accepted as constitutionally
legitimate the simple reality that the prosecutor's interest at
the bargaining table is to persuade the defendant to forgo his constitutional
right to stand trial. The Court concluded:
"We hold only that the course of conduct
engaged in by the prosecutor in this case, which no more than
openly presented the defendant with the unpleasant alternatives
of forgoing trial or facing charges on which he was plainly
subject to prosecution, did not violate the Due Process Clause
of the Fourteenth Amendment." Id., at 365.
The outcome in Bordenkircher was mandated by
this Court's acceptance of plea negotiation as a legitimate process.
10 In declining to apply a presumption
of vindictiveness, [457 U.S. 368, 379] the Court recognized
that "additional" charges obtained by a prosecutor could not necessarily
be characterized as an impermissible "penalty." Since charges brought
in an original indictment may be abandoned by the prosecutor in
the course of plea negotiation - in often what is clearly a "benefit"
to the defendant - changes in the charging decision that occur in
the [457 U.S. 368,
380] context of plea negotiation are an inaccurate
measure of improper prosecutorial "vindictiveness."
11 An initial indictment - from which
the prosecutor embarks on a course of plea negotiation - does not
necessarily define the extent of the legitimate interest in prosecution.
For just as a prosecutor may forgo legitimate charges already brought
in an effort to save the time and expense of trial, a prosecutor
may file additional charges if an initial expectation that a defendant
would plead guilty to lesser charges proves unfounded.
States v. Goodwin, 457 U.S. 368 (1982)]
Wolff v. McDonnell, 418 U.S. 539; 94 S.Ct. 2963; 41 L.Ed.2d 935 (1974):
"This analysis as to liberty parallels the accepted due process analysis
as to property. The Court has consistently held that some kind
of hearing is required at some time before a person is finally deprived
of his property [418 U.S.
539, 558] interests. Anti-Fascist Committee
341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). The requirement
for some kind of a hearing applies to the taking of private property,
Grannis v. Ordean,
234 U.S. 385 (1914), the revocation of licenses, In re Ruffalo,
390 U.S. 544 (1968), the operation of state dispute-settlement mechanisms,
when one person seeks to take property from another, or to government-created
jobs held, absent "cause" for termination, Board of Regents v. Roth,
408 U.S. 564 (1972); Arnett v. Kennedy,
416 U.S. 134, 164 (1974) (POWELL, J., concurring); id., at 171 (WHITE,
J., concurring in part and dissenting in part); id., at 206 (MARSHALL,
J., dissenting). Cf. Stanley v. Illinois,
405 U.S. 645, 652 -654 (1972); Bell v. Burson,
402 U.S. 535 (1971)."
v. McDonnell, 418 U.S. 539; 94 S.Ct. 2963; 41 L.Ed.2d 935 (1974)]
Merriam Webster's Dictionary of Law, 1996
1: a course of formal proceedings (as judicial
proceedings) carried out regularly, fairly, and in accordance with
established rules and principles
2: a requirement that laws and regulations must
be related to a legitimate government interest (as crime prevention)
and may not contain provisions that result in the unfair or arbitrary
treatment of an individual
(called also procedural
(called also substantive due
Note: The guarantee of due process is found
in the Fifth Amendment to the Constitution, which states ``no person
shall . . . be deprived of life, liberty, or property, without due
process of law,'' and in the Fourteenth Amendment, which states
``nor shall any state deprive any person of life, liberty, or property
without due process of law.'' The boundaries of due process are
not fixed and are the subject of endless judicial interpretation
and decision-making. Fundamental to procedural due process is adequate
notice prior to the government's deprivation of one's life, liberty,
or property, and an opportunity to be heard and defend one's rights
to life, liberty, or property. Substantive due process is a limit
on the government's power to enact laws or regulations that affect
one's life, liberty, or property rights. It is a safeguard from
governmental action that is not related to any legitimate government
interest or that is unfair, irrational, or arbitrary in its furtherance
of a government interest. The requirement of due process applies
to agency actions.
3: the right to due process
that violated due process
[Merriam Webster's Dictionary of Law, 1996]
Fifth Amendment Right to Due Process:
shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
Amendment Right to Due Process:]
Authorities on Failure of Government Agencies to follow their
own internal procedures:
Failure of an administrative
agency to follow its own established procedures constitutes a violation
of procedural due process.
Berends v. Butz, D.C.Minn.1973,
357 F.Supp. 143. See, also, Bills v. Hendenson, C.A.6(Tenn.) 1980,
631 F.2d 1287; Government of Canal Zone v. Brooks, C.A.Canal Zone
1970, 427 F.2d 346; Associated Builders & Contractors of Texas Gulf
Coast, Inc. v. U.S. Dept. of Energy, D.C.Tex.1978, 451 F.Supp. 281;
Brown v. U.S., D.C.Tex.1974, 377 F.Supp. 530; U.S. v. Ginsburg, D.C.Conn.1974,
376 F.Supp. 714.
Turpin v. Lemon, 187 U.S. 51, 23 S.Ct. 20 (1902):
what due process of law requires in the assessment and collection of
general taxes has never been decided by this court, although we have
had frequent occasion to hold that, in proceedings for the condemnation
of land under the laws of eminent domain, or for the imposition of special
taxes for local improvements, notice to the owner at some stage of the
proceedings, as well as an opportunity to defend, is essential.
[Cites omitted.] But laws for the assessment and collection of
general taxes stand upon a somewhat different footing, and are construed
with the utmost liberality, sometimes even to the extent of holding
that no notice whatever is necessary. Due process of law was well
defined by Mr. Justice Field in Hagar v. Reclamation Dist., No. 108,
111 U.S. 701, 28 L.Ed. 569, 4 Sup.Ct.Rep. 663, in the following words:
"It is sufficient to observe here, that by 'due process' is meant one
which, following the forms of law, is appropriate to the case, and just
to the parties to be affected. It must be pursuant in the ordinary
mode prescribed by the law; it must be adapted too the end to be attained;
and wherever it is necessary for the protection of the parties, it must
give them an opportunity to be heard respecting the justice of the judgment
sought. The clause in question means, therefore, that there can
be no proceeding against life, liberty, or property which may result
in deprivation of either, without the observance of those general rules
established in our system of jurisprudence for the security of private
Under the Fourth Amendment,
the legislature is bound to provide a method for the assessment and
collection of taxes that shall not be inconsistent with natural justice;
but it is not bound to provide that the particular steps of a procedure
for the collection of such taxes shall be proved by written evidence;
and it may properly impose upon the taxpayer the burden of showing that
in a particular case the statutory method was not observed."
v. Lemon, 187 U.S. 51; 23 S.Ct. 20 (1902)]
Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682 (1949)
Coy v. Iowa, 487 U.S. 1012 (1988)
The Sixth Amendment gives a criminal defendant
the right "to be confronted with the witnesses against him." This
language "comes to us on faded parchment," California v. Green,
399 U.S. 149, 174 (1970) (Harlan, J., concurring), with a lineage
that traces back to the beginnings of Western legal culture. There
are indications that a right of confrontation existed under Roman
law. The Roman Governor Festus, discussing the proper treatment
of his prisoner, Paul, stated: "It is not the manner of the Romans
to deliver any man up to die before the accused has met his accusers
face to face, and has been given a chance to defend himself against
the [487 U.S. 1012,
1016] charges." Acts 25:16. It has been argued
that a form of the right of confrontation was recognized in England
well before the right to jury trial. Pollitt, The Right of Confrontation:
Its History and Modern Dress, 8 J. Pub. L. 381, 384-387 (1959).
Most of this Court's encounters with the Confrontation
Clause have involved either the admissibility of out-of-court statements,
see, e. g., Ohio v. Roberts,
448 U.S. 56 (1980); Dutton v. Evans,
400 U.S. 74 (1970), or restrictions on the scope of cross-examination,
Delaware v. Van Arsdall,
475 U.S. 673 (1986); Davis v. Alaska,
415 U.S. 308 (1974). Cf. Delaware v. Fensterer,
474 U.S. 15, 18 -19 (1985) (per curiam) (noting these two categories
and finding neither applicable). The reason for that is not, as
the State suggests, that these elements are the essence of the Clause's
protection - but rather, quite to the contrary, that there is at
least some room for doubt (and hence litigation) as to the extent
to which the Clause includes those elements, whereas, as Justice
Harlan put it, "[s]imply as a matter of English" it confers at least
"a right to meet face to face all those who appear and give evidence
at trial." California v. Green, supra, at 175. Simply as a matter
of Latin as well, since the word "confront" ultimately derives from
the prefix "con-" (from "contra" meaning "against" or "opposed")
and the noun "frons" (forehead). Shakespeare was thus describing
the root meaning of confrontation when he had Richard the Second
say: "Then call them to our presence - face to face, and frowning
brow to brow, ourselves will hear the accuser and the accused freely
speak . . . ." Richard II, Act 1, sc. 1.
We have never doubted, therefore, that
the Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact. See Kentucky
482 U.S. 730, 748 , 749-750 (1987) (MARSHALL, J., dissenting).
For example, in Kirby v. United States,
174 U.S. 47, 55 (1899), which concerned the admissibility of
prior convictions of codefendants to prove an element of the offense
[487 U.S. 1012, 1017]
of receiving stolen Government property, we described
the operation of the Clause as follows: "[A] fact which can be primarily
established only by witnesses cannot be proved against an accused
. . . except by witnesses who confront him at the trial, upon whom
he can look while being tried, whom he is entitled to cross-examine,
and whose testimony he may impeach in every mode authorized by the
established rules governing the trial or conduct of criminal cases."
Similarly, in Dowdell v. United States,
221 U.S. 325, 330 (1911), we described a provision of the Philippine
Bill of Rights as substantially the same as the Sixth Amendment,
and proceeded to interpret it as intended "to secure the accused
the right to be tried, so far as facts provable by witnesses are
concerned, by only such witnesses as meet him face to face at the
trial, who give their testimony in his presence, and give to the
accused an opportunity of cross-examination." More recently, we
have described the "literal right to `confront' the witness at the
time of trial" as forming "the core of the values furthered by the
Confrontation Clause." California v. Green, supra, at 157. Last
Term, the plurality opinion in Pennsylvania v. Ritchie,
480 U.S. 39, 51 (1987), stated that "[t]he Confrontation Clause
provides two types of protections for a criminal defendant: the
right physically to face those who testify against him, and the
right to conduct cross-examination."
The Sixth Amendment's guarantee of face-to-face
encounter between witness and accused serves ends related both to
appearances and to reality. This opinion is embellished with references
to and quotations from antiquity in part to convey that there is
something deep in human nature that regards face-to-face confrontation
between accused and accuser as "essential to a fair trial in a criminal
prosecution." Pointer v. Texas,
380 U.S. 400, 404 (1965). What was true of old is no less true
in modern times. President Eisenhower once described face-to-face
confrontation as part of the code of his hometown of Abilene, Kansas.
In Abilene, he said, it was necessary to "[m]eet anyone face to
face with whom you [487 U.S. 1012, 1018] disagree.
You could not sneak up on him from behind, or do any damage to him,
without suffering the penalty of an outraged citizenry. . . . In
this country, if someone dislikes you, or accuses you, he must come
up in front. He cannot hide behind the shadow." Press release of
remarks given to the B'nai B'rith Anti-Defamation League, November
23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists,
"Look me in the eye and say that." Given these human feelings of
what is necessary for fairness, 2 the
right of confrontation [487 U.S. 1012, 1019] "contributes
to the establishment of a system of criminal justice in which the
perception as well as the reality of fairness prevails." Lee v.
476 U.S. 530, 540 (1986).
The perception that confrontation is essential
to fairness has persisted over the centuries because there is much
truth to it. A witness "may feel quite differently when he has to
repeat his story looking at the man whom he will harm greatly by
distorting or mistaking the facts. He can now understand what sort
of human being that man is." Z. Chafee, The Blessings of Liberty
35 (1956), quoted in Jay v. Boyd,
351 U.S. 345, 375 -376 (1956), (Douglas, J., dissenting). It
is always more difficult to tell a lie about a person "to his face"
than "behind his back." In the former context, even if the lie is
told, it will often be told less convincingly. The Confrontation
Clause does not, of course, compel the witness to fix his eyes upon
the defendant; he may studiously look elsewhere, but the trier of
fact will draw its own conclusions. Thus the right to face-to-face
confrontation serves much the same purpose as a less explicit component
of the Confrontation Clause that we have had more frequent occasion
to discuss [487 U.S.
1012, 1020] - the right to cross-examine the accuser;
both "ensur[e] the integrity of the factfinding process." Kentucky
482 U.S., at 736 . The State can hardly gainsay the profound
effect upon a witness of standing in the presence of the person
the witness accuses, since that is the very phenomenon it relies
upon to establish the potential "trauma" that allegedly justified
the extraordinary procedure in the present case. That face-to-face
presence may, unfortunately, upset the truthful rape victim or abused
child; but by the same token it may confound and undo the false
accuser, or reveal the child coached by a malevolent adult. It is
a truism that constitutional protections have costs.
v. Iowa, 487 U.S. 1012 (1988)]
World-Wide Volkswagen v. Woodson, 444 U.S. 286 (1980)
“The Due Process Clause of the Fourteenth Amendment
limits the power of a state court to render a valid personal judgment
against a nonresident defendant. Kulko v. California Superior
Court,, 436 U.S. 84, 91 (1978).”
[World-Wide Volkswagen v. Woodson,
444 U.S. 286 (1980)]
26 C.F.R. §601.106(f)(1): Appeals Functions
(1) Rule I.
An exaction by the U.S.
Government, which is not based upon law, statutory or otherwise, is
a taking of property without due process of law, in violation of the
Fifth Amendment to the U.S. Constitution. Accordingly, an Appeals representative
in his or her conclusions of fact or application of the law, shall hew
to the law and the recognized standards of legal construction. It shall
be his or her duty to determine the correct amount of the tax, with
strict impartiality as between the taxpayer and the Government, and
without favoritism or discrimination as between taxpayers.
7804(b): Other Personnel (seizures)
- (b) Posts of duty of employees in field service
Unless otherwise prescribed by the Secretary -
- (1) Designation of post of duty
Commissioner shall determine and designate the posts of
of all such persons engaged in field work or traveling on
official business outside of the District of Columbia.
- (2) Detail of personnel from field service
The Commissioner may order any such person engaged in field
work to duty in the District of Columbia, for such periods as
Commissioner may prescribe, and to any designated post
outside the District of Columbia upon the completion
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)
The question is not whether the Wisconsin law is a wise law or
unwise law. Our concern is not what philosophy Wisconsin should
or should not embrace. See Green v. Frazier,
253 U.S. 233 . We do not sit as a super-legislative body. In
this case the sole question is whether there has been a taking of
property without that procedural due process that is required by
the Fourteenth Amendment. We have dealt over and over again with
the question of what constitutes "the right to be heard" (Schroeder
v. New York,
371 U.S. 208, 212 ) within the meaning of procedural due process.
See Mullane v. Central Hanover Trust Co.,
339 U.S. 306, 314 . In the latter case we said that the right
to be heard "has little reality or worth unless one is informed
that the matter is pending and can choose for himself whether
[395 U.S. 337, 340] to appear or default, acquiesce
339 U.S., at 314 . In the context of this case the question
is whether the interim freezing of the wages without a chance to
be heard violates procedural due process.
A procedural rule that may satisfy due process for attachments
in general, see McKay v. McInnes,
279 U.S. 820 , does not necessarily satisfy procedural due process
in every case. The fact that a procedure would pass muster under
a feudal regime does not mean it gives necessary protection to all
property in its modern forms. We deal here with wages - a specialized
type of property presenting distinct problems in our economic system.
We turn then to the nature of that property and problems of procedural
A prejudgment garnishment of the Wisconsin type is a taking which
may impose tremendous hardship on wage earners with families to
support. Until a recent Act of Congress,
4 304 of which forbids
discharge of employees on the ground that their wages have been
garnished, garnishment often meant the loss of a job. Over and beyond
that was the great drain on family income. As stated by Congressman
"The idea of wage garnishment in advance of judgment, of
trustee process, of wage attachment, or whatever it is called
is a most inhuman doctrine. It compels the wage earner, trying
to keep his family together, to be driven below the poverty
Recent investigations of the problem have disclosed the grave injustices
made possible by prejudgment garnishment whereby the sole opportunity
to be heard comes after the taking. Congressman Sullivan, Chairman
of [395 U.S. 337,
341] the House Subcommittee on Consumer Affairs
who held extensive hearings on this and related problems stated:
"What we know from our study of this problem is that in a
vast number of cases the debt is a fraudulent one, saddled on
a poor ignorant person who is trapped in an easy credit nightmare,
in which he is charged double for something he could not pay
for even if the proper price was called for, and then hounded
into giving up his pound of flesh, and being fired besides."
114 Cong. Rec. 1832.
The leverage of the creditor on the wage earner is enormous. The
creditor tenders not only the original debt but the "collection
fees" incurred by his attorneys in the garnishment proceedings:
"The debtor whose wages are tied up by a writ of garnishment,
and who is usually in need of money, is in no position to resist
demands for collection fees. If the debt is small, the debtor
will be under considerable pressure to pay the debt and collection
charges in order to get his wages back. If the debt is large,
he will often sign a new contract of `payment schedule' which
incorporates these additional charges."
Apart from those collateral consequences, it appears that in Wisconsin
the statutory exemption granted the wage earner
7 is "generally insufficient
to support the debtor for any one week."
The result is that a prejudgment garnishment of the Wisconsin
type may as a practical matter drive a wage-earning
[395 U.S. 337, 342]
family to the wall.
9 Where the taking of
one's property is so obvious, it needs no extended argument to conclude
that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer
237 U.S. 413, 423 ) this prejudgment garnishment procedure violates
the fundamental principles of due process.
v. Family Finance Corp., 395 U.S. 337 (1969)]
This question is, as we believe, substantially
answered by the reasoning of the opinion in the Hurtado Case,
110 U.S. 516, 535 , 28 S. L. ed. 232, 238, 4 Sup. Ct. Rep. 111,
292. The distinct question was there presented whether it was due
process of law to prosecute a person charged with murder by an information
under the state Constitution and law. It was held that it was, and
that the Fourteenth Amendment did not prohibit such a procedure.
In our opinion the right to be exempt from prosecution for an infamous
crime, except upon a presentment by a grand jury, is of the same
nature as the right to a trial by a petit jury of the number fixed
by the common law. If the state have the power to abolish the grand
jury and the consequent proceeding by indictment, the same course
of rea- [176 U.S.
581, 603] soning which establishes that right
will and does establish the right to alter the number of the petit
jury from that provided by the common law. Many cases upon the subject
since the Hurtado Case was decided are to be found gathered in Hodgson
168 U.S. 262 , 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Holden v.
169 U.S. 366, 384 , 42 S. L. ed. 780, 788, 13 Sup. Ct. Rep.
383; Brown v. New Jersey,
175 U.S. 172 , 20 Sup. Ct. Rep. 77, 44 L. ed. --; Bolln v. Nebraska,
176 U.S. 83 , 20 Sup. Ct. Rep. 287, 44 L. ed. --.
Trial by jury has never been affirmed to be a
necessary requisite of due process of law. In not one of the cases
cited and commented upon in the Hurtado Case is a trial by jury
mentioned as a necessary part of such process.
In Re Converse,
137 U.S. 624 , 34 L. ed. 796, 11 Sup. Ct. Rep. 191, it was stated
that the Fourteenth Amendment was not designed to interfere with
the power of a state to protect the lives, liberty, and property
of its citizens, nor with the exercise of that power in the adjudications
of the courts of a state in administering process provided by the
law of the state.
In Caldwell v. Texas,
137 U.S. 692 , 34 L. ed. 816, 11 Sup. Ct. Rep. 224, it was held
that no state can deprive particular persons or classes of persons
of equal and impartial justice under the law, without violating
the provisions of the Fourteenth Amendment to the Constitution,
and that due process of law, within the meaning of the Constitution,
is secured when the laws operate on all alike, and no one is subjected
to partial or arbitrary exercise of the powers of government.
In Leeper v. Texas,
139 U.S. 462, 467 , 35 S. L. ed. 225, 226, 11 Sup. Ct. Rep.
577, it was said 'that by the Fourteenth Amendment the powers of
states in dealing with crime within their borders are not limited,
except that no state can deprive particular persons, or class of
persons, of equal and impartial justice under the law; that law
in its regular course of administration through courts of justice
is due process, and when secured by the law of the state the constitutional
requirement is satisfied; and that due process is so secured by
laws operating on all alike, and not subjecting the individual to
the arbitrary exercise of the powers of government unrestrained
by the established principles of private right and distributive
justice. Hurtado v. California,
110 U.S. 516, 535 , 28 S. L. ed. 232, 238, 4 Sup. Ct. Rep. 111,
292, and cases cited.' See also, for statement
[176 U.S. 581, 604]
as to due process of law, the cases of Davidson
v. New Orleans,
96 U.S. 97 , 24 L. ed. 616; Hagar v. Reclamation Dist. No. 108,
111 U.S. 701, 707 , 28 S. L. ed. 569, 4 Sup. Ct. Rep. 663.
The clause has been held to extend to a proceeding
conducted to judgment in a state court under a valid statute of
the state, if such judgment resulted in the taking of private property
for public use, without compensation made or secured to the owner,
under the conditions mentioned in the cases herewith cited. Chicago,
B. & Q. R. Co. v. Chicago,
166 U.S. 226 , 41 L. ed. 985, 17 Sup. Ct. Rep. 581; Backus v.
Fort Street Union Depot Co.
169 U.S. 557 , 42 L. ed. 853, 18 Sup. Ct. Rep. 445.
It has also been held not to impair the police
power of a state. Barbier v. Connolly,
113 U.S. 27 , 28 L. ed. 923, 5 Sup. Ct. Rep. 375.
v. Dow, 176 U.S. 581 (1900)]
Willner v. Committee on Character, 373 U.S. 96 (1963)
"No conflict exists between constitutional requisites and exaction
of the highest moral standards from those who would practice law.
See Schware v. Board of Bar Examiners,
353 U.S. 232, 238 -239. Certainly lawyers and courts should
be particularly sensitive of, and have a special obligation to respect,
the demands of due process. This special awareness, however, does
not alter our essential function or duty. In reviewing state
action in this area, as in all others, we look to substance, not
to bare form, to determine
[373 U.S. 96, 107] whether constitutional
minimums have been honored."
[Willner v. Committee on Character, 373 U.S. 96 (1963)]
United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993)
Due process of law is violated when the government vindictively
attempts to penalize a person for exercising a protected statutory
or constitutional right.
[United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993)]
We can hardly find a denial of due process in these circumstances,
particularly since it is even doubtful that appellee's burdens under
the program outweigh his benefits. It is hardly lack of due process
for the Government to regulate that which it subsidizes.
FN30 s 7 of the amendment of
May 26, 1941 provided that a farm marketing quota should not
be applicable to any farm on which the acreage planted to wheat
is not in excess of fifteen acres. When the appellee planted
his wheat the quota was inapplicable to any farm on which the
normal production of the acreage planted to wheat was less than
200 bushels. s 335(d) of the Agricultural Adjustment Act of
1938, as amended by 54 Stat. 232,
7 U.S.C.A. s 1335(d).
FN31 ss 6, 10(c) of the amendment
of May 26, 1941.
[Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942)]
DUE PROCESS OF LAW ARTICLE:
article below contains the following relevant/important citations
of case law pertaining to common IRS situations which Thurston Bell
The actual case of Goldberg v.
Kelly is available at
or a copy of it locally at this site Goldberg v.
397 U.S. 254 (1970)
for your reference.
It is a fact that the
Goldberg case was about Welfare Benefits being cut off, but the
ultimate argument before the court was about the applicability of
the standards of DUE PROCESS OF LAW to Administrative Actions of
the Government. Importantly,
this article reveals that the standards of due process of law apply
to all Administrative Actions of the Government, Federal and State.
"The fundamental requisite
of due process of law is the opportunity to be heard".
Grannis v. Ordean, 234 U.S. 385,394 (1914).
The hearing must be "at a meaningful time and in a meaningful
Manzo, 380 U.S.
In the present context these principles require…timely and
adequate notice detailing reasons…, and an effective opportunity
to defend by confronting any adverse witnesses and by presenting
arguments and evidence… These rights are important in cases...challenged…as
resting on incorrect or misleading factual premises or on misapplication
of rules or policies to the facts of particular cases."
"In almost every setting
where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.
E.g., ICC v.
Lousiville & N.R. Co.,
227 U.S. 88, 93-94
(1913) 503 US L.Ed 2nd 391(1992), Willner v.
Committee on Character and Fitness,
373 U.S. 474,496-497
397 U.S. 254 (1970) (emphasis added)
have remained relatively immutable in our jurisprudence.
One of these is 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. While it is important in the case of
documentary evidence, it is more important where the evidence consists
of testimony of individuals…"
"We have formalized
these protections in the requirements of confrontation and cross-examination.
This court has been zealous to protect these rights from
erosion. It has spoken
out…in all types of cases where administrative...actions were under
360 U.S. 474.
These case citations
and the argument regarding the components of Administrative Due
Process of Law plainly apply to "all types of cases where administrative...actions
were under scrutiny."
This was the principle and premise that I used to explain
to an old friend of mine how it is that I connected a case on Welfare
There is no doubt that
these components of due process of law are embodied and given substance
in American law by the 1st, 5th, and 6th Amendments to the Constitution.
I think that it would be impossible for anyone to contend
anything to the contrary.
The following provision of Federal Regulation clearly reveals
that the Secretary of the Treasury testifies to the fact that the
5th Amendment applies to the IRS:
CFR § 601.106(f)(1)
An exaction by the U.S.
Government, which is not based upon law, statutory or otherwise,
is a taking of property without due process of law, in violation
of the Fifth Amendment to the U.S.
So it is nakedly apparent
that the Amendments to the Constitution apply to the IRS, and we
know that none of the three Amendments mentioned above have been
repealed or amended, therefore the only way out for the IRS is to
somehow provide that the standards of due process of law, which
would appear to be more important since we bear the burden of proof,
apply to us and our cases before the IRS.
Below is exactly why it is
that we should seek for the IRS to provide:
presentment of copies of all evidence used by the government
meaningful hearing of all of the facts of this case;
of procedure, forms, or opportunity to refute the evidence against
us (which is also the making of contentions of factual nature);
d.) hearing before an independent and impartial hearing officer;
e.) opportunity to confront and cross-examine all adverse
witnesses, for the creation of a complete defense and administrative
record to support any subsequent appeal.
as the elements of these rights
were cited in the above U.S.
Supreme Court cases.
Without them my question to the IRS, the District Counsel,
the Secretary of the Treasury, the Commissioner and Assistant Commissioner,
the President, the Congress, the District Director, and the Federal
"How then are we expected
to bear or shift the burden of proof?"
Without these components of
due process of law applying to all branches of the Government, especially
where it is that Judicial Due Process prior to the taking of property
is barred by statute, the concept of the requirement for Due Process
of Law as required in the 5th Amendment to the Constitution of the
United States becomes arbitrary and capricious, and the Societal/Social
contract Between the People and the People and their Government
is null and void.
If the Contract is
going to be held in tact by the Courts then this following case
is very important when you face collections of the government in
the face of Denial of Due Process of Law:
“If the right to notice and a hearing is to serve its full purpose,
it is clear that it must be granted at a time when the deprivation
can still be prevented.
At a later hearing, an individual’s possessions can be returned
to him if they were unfairly or mistakenly taken in the first place.
Damages may even be awarded him for wrongful deprivation.
But no later hearing and no damage award can undo the fact
that the arbitrary taking that was subject to the right of due process
has already occurred.
This Court [the Supreme Court] has not embraced the general
proposition that a wrong may be done if it can be undone.”
Stanley v. Illinois, 405 U.S.
645, 647, 31 L.Ed.2d 551, 556,.Ct. 1208 (1972)
There are many who
will read this article in the future who believe and have long held
that the Societal/Social Contract is dead.
Still, these people have failed to come forward with a simplistic
argument as this one which would prove that belief as a simple inescapable
Here I give you the
foundations for that argument.
I hope that they are simple enough for the common man to
understand so that they will see that we have not yet exhausted
our redress of grievance against the IRS determinations as well
as the apparent lawlessness of our Courts.
We have not yet done so, because nobody has made it this
simple, and thus the actions of such people who are just one step
from becoming the next Russell Weston Jr.
(the accused Capitol Hill Gun-Man) are just as Mr.
Weston's, and that is an individual's attempt to tear asunder
the Societal/Social Contract that is only apparently dead, and not
conclusively dead by all evidence, argument, and fact.
It is my goal to force
the Courts to either uphold our Social Contract, or for them to
Publicly and Nakedly declare it to be dead, by forcing them to answer
the question about how it is that we are to have hope of bearing
or shifting burden of proof without presentment of the evidence
against us as well as the other components provided above.
If you or I dare to
take action against the apparently active Social Contract at this
time we will be criminals.
Yet, if the Supreme Court
and Federal Courts refuse to provide remedy and redress of grievance,
or even rule that due Process is not applicable to IRS matters due
to the Anti-Injunction Act of 1863 and codified at
§ 7421, and ignores the fact that the 1st, 5th, and 6th Amendments
have not been repealed or amended to bar administrative due process
of law in keeping with the standards of due process of law, then
the Court, the final defender and Fiduciary of the Social and Societal
Contract will be the one who will make the fact of the demise and
disposition of the Contract clear, and they will be the final word.
Their decision will be a legal and valid determination, from there
the individual will be free and forced to choose his or her personal
course of action.
The record to date
shows that the IRS is not interested in providing the components
of due process of law for us to make our defense and carry or shift
the burden of proof, it is now time to bring this violation of the
Contract to the Feet of the High Court, and make them rule not on
Taxes, but on Due Process of Law, the Foundation of our Rule of
Law and Nation pursuant to American Jurisprudence:
"The guaranty of due
process of law is one of the most important to be found in the Federal
Constitution or any of the Amendments; Ulman v. Mayor, etc.
of Baltimore, 72 Md 587, 20 A 141, affd 165 US 719, 41 L
Ed 1184, 17 S Ct 1001.
It has been described as the very essence of a scheme of ordered
justice, Brock v. North
Carolina, 344 US 424, 97 L Ed 456, 73 S Ct 349 and it has been said
that without it the right to private property could not be said
to exist, in the sense in which it is known to our laws.
Hernandez y Morales,
230 US 139, 57 L Ed 1427, 33 S Ct 1033."
There we have it, without
due process of law, there is no private property, including the
rights that come with property.
There is also no right to the property of your person, your
land, your home. This
also means that Commerce is finished, as there is no property actual,
physical, real, or intellectual that can be protected from marauders,
thieves, visigoths, or vandals.
So business better start getting involved, as they are next.
Without due process of law
all lawyers are out of work, the foundations of the courts are undermined,
they have no power, and the Law of the Jungle rules, the Societal
Contract is Officially Dead, and the Courts ruling will be the Death
It might be true already that
the Law of the Jungle Rules, but we have to make the U.S.
Supreme Court prove it.
When this happens we can all quote Axel Rose from the Rock Band
Guns and Roses..."Welcome to the Jungle..
we've got fun and games!"