CITES BY TOPIC:  due process

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.  If 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).

[Black's 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

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. 4  

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 exists.

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 a retaliatory [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   [457 U.S. 368, 375]  

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 it:

"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 `vindictiveness.'" 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, and stated:

"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. 12

[United 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 v. McGrath, 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)." 

[Wolff 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
(called also procedural due process)

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 substantive due process)
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
Example: acts that violated due process

[Merriam Webster's Dictionary of Law, 1996]

Fifth Amendment Right to Due Process:

No person 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 compensation.

[Fifth 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):

Exactly 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 rights."

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."

[Turpin 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 v. Stincer, 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. Illinois, 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 v. Stincer, 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.

[Coy 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.

26 U.S.C. 7804(b):  Other Personnel (seizures)

  • (b) Posts of duty of employees in field service or traveling
    Unless otherwise prescribed by the Secretary -
    • (1) Designation of post of duty
      The Commissioner shall determine and designate the posts of
      duty 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 the
      Commissioner may prescribe, and to any designated post of duty
      outside the District of Columbia upon the completion of such
      duty.

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 or contest." 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 due process.

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 Reuss: 5  

"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 level."
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." 6  
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." 8  

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 Works, 237 U.S. 413, 423 ) this prejudgment garnishment procedure violates the fundamental principles of due process.

[Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)]

Maxwell v. Dow, 176 U.S. 581 (1900):

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 v. Vermont, 168 U.S. 262 , 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Holden v. Hardy, 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.

[Maxwell 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)]

PDF Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942)

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:

The article below contains the following relevant/important citations of case law pertaining to common IRS situations which Thurston Bell has excerpted.

The actual case of Goldberg v.  Kelly is available at http://www.laws.findlaw.com/US/397/254.html or a copy of it locally at this site Goldberg v.  Kelly, 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 manner."Armstrong v.  Manzo, 380 U.S.  545, 552(1965).  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 (1959)"  Goldberg v.  Kelly, 397 U.S. 254 (1970) (emphasis added)

_________________________________________

 "Certain principles 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 scrutiny."  Greene v.  McElroy, 360 U.S.  474.  496-497 (1959)

 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 to IRS.

 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:

 26 CFR § 601.106(f)(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.

 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:

a.)  presentment of copies of all evidence used by the government against us;
b.)  meaningful hearing of all of the facts of this case;
c.) notification 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; and;
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 Judiciary is,

"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 fact.

 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 26 USC § 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.  Ochoa v.  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 Certificate.

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!"