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CRS Annotated Constitution

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Power of the States to Regulate Procedure

Generally.—The due process clause of the Fourteenth Amendment does not control mere forms of procedure in state courts or regulate practice therein.11 A State “is free to regulate procedure of its courts in accordance with it own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”12 Pursuant to such power, the States have regulated the manner in which rights may be enforced and wrongs remedied,13 and in connection therewith have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate.14 Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues which can ordinarily give rise to no conflict with the Fourteenth Amendment, inasmuch as its function is negative rather than affirmative and in no way obligates the States to adopt specific measures of reform.15 More recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process.16


Commencement of Actions.—A state may impose certain conditions on the right to institute litigation. Access to the courts has been denied to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.17 But, at least in those situations in which the State has monopolized the avenues of settlement of disputes between persons by prescribing judicial resolution, and where the dispute involves such a fundamental interest as marriage and its dissolution, no State may deny to those persons unable to pay its fees access to those judicial avenues.18 It must be considered, then, that foreclosure of all access to the courts, at least through financial barriers and perhaps through other means as well, is subject to federal constitutional scrutiny and must be justified by reference to a state interest of suitable importance. In older cases, not questioned by the more recent ones, it was held that a State, as the price of opening its tribunals to a nonresident plaintiff, may exact the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff’s attorney of record.19 and for similar reasons, a requirement, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover for damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable.20

Pleas in Abatement.—State legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process is constitutional and does not deprive him of property without due process of law. Such a defendant, if he pleases, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an[p.1697]attempt is made to take his property thereunder. However, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even a semblance of a judgment against him, it is within the power of a State to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled.21

Defenses.—Just as a State may condition the right to institute litigation, so may it establish terms for the interposition of certain defenses. It may validly provide that one sued in a possessory action cannot bring an action to try title until after judgment is rendered and after he has paid that judgment, if it so provides.22 A State may limit the defense in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.23 A State may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment–related accidents. No person has a vested right in such defenses.24

Similarly, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend.25

Amendments and Continuances.—Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal. Accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.26


Costs, Damages, and Penalties.—What costs are allowed by law is for the court to determine; an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.27 Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.28 Congress may severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal.29 Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.30 Also, as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons, a State may permit harassed litigants to recover penalties in the form of attorney’s fees or damages.31 To deter careless destruction of human life, a State by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees,32 and may also allow punitive damages for fraud perpetrated by employees.33 Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.34

Supplement: [P. 1698, add to text after n.34:]

The Court has indicated, however, that the amount of punitive damages is limited to what is reasonably necessary to vindicate a state’s interest in deterring unlawful conduct.16 These limits may be discerned by a court by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.17

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a State may provide that a public officer embezzling public[p.1699]money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine is called, whether a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.35 On the other hand, when appellant, by its refusal to surrender certain assets, was adjudged in contempt for frustrating enforcement of a judgment obtained against it, dismissal of its appeal from the first judgment was not a penalty imposed for the contempt, but merely a reasonable method for sustaining the effectiveness of the State’s judicial process.36


11 Holmes v. Conway, 241 U.S. 624, 631 (1916) ; Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900) .
12 Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ; West v. Louisiana, 194 U.S. 258, 263 (1904) ; Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226 (1897) ; Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) . See Boddie v. Connecticut, 401 U.S. 371 (1971) , for one recent limitation. The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts is also subject to restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Constitution. Angel v. Bullington, 330 U.S. 183 (1947) .
13 Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931) ; Iowa Central Ry. v. Iowa, 160 U.S. 389, 393 (1896) : Honeyman v. Hanan, 302 U.S. 375 (1937) . See also Lindsey v. Normet, 405 U.S. 56 (1972) .
14 Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904) .
15 Ownbey v. Morgan, 256 U.S. 94, 112 (1921) . Thus the Fourteenth Amendment does not constrain the States to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammelled liberty to amend pleadings. Note that the Supreme Court did once grant review to determine whether due process required the States to provide some form of post–conviction remedy to assert federal constitutional violations, a review which was mooted when the State enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965) . When a State, however, through its legal system exerts a monopoly over the pacific settlement of private disputes, as with the dissolution of marriage, due process may well impose affirmative obligations on that State. Boddie v. Connecticut, 401 U.S. 371, 374–77 (1971) .
16 While this statement is more generally true in the context of criminal cases, in which the appellate process and post–conviction remedial process have been subject to considerable revision in the treatment of indigents, some requirements have also been imposed in civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971) ; Lindsey v. Normet, 405 U.S. 56, 74–79 (1972) ; Santosky v. Kramer, 455 U.S. 745 (1982) . Review has, however, been restrained with regard to details. See, e.g., Lindsey v. Normet, supra, 64–69.
17 Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949) . Nor was the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment was imposed thereby and the only effect thereof was to stay such proceedings until the security was furnished.
18 Boddie v. Connecticut, 401 U.S. 371 (1971) . See also Little v. Streater, 452 U.S. 1 (1981) (state–mandated paternity suit); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody).
19 Young Co. v. McNeal–Edwards Co., 283 U.S. 398 (1931) ; Adam v. Saenger, 303 U.S. 59 (1938) .
20 Jones v. Union Guano Co., 264 U.S. 171 (1924) .
21 York v. Texas, 137 U.S. 15 (1890) ; Kauffman v. Wootters, 138 U.S. 285, 287 (1891) .
22 Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915) .
23 Lindsey v. Normet, 405 U.S. 56, 64–69 (1972) . See also Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law providing for summary foreclosure of a mortgage without allowing any defense except payment).
24 Bowersock v. Smith, 243 U.S. 29, 34, (1917); Chicago, R.I. & P. Ry. v. Cole, 251 U.S. 54, 55 (1919) ; Herron v. Southern Pacific Co., 283 U.S. 91 (1931) . See also Martinez v. California, 444 U.S. 277, 280– 83 (1980) (State interest in fashioning its own tort law permits it to provide immunity defenses for its employees and thus defeat recovery).
25 Ownbey v. Morgan, 256 U.S. 94 (1921) .
26 Sawyer v. Piper, 189 U.S. 154 (1903) .
27 Ballard v. Hunter, 204 U.S. 241, 259 (1907) .
28 Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914) .
29 Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error in the proceedings that presence of attorneys would sharply diminish). See also United States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements).
30 Lowe v. Kansas, 163 U.S. 81 (1896) . Consider, however, the possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966) (statute allowing jury to impose costs on acquitted defendant, but containing no standards to guide discretion, violates due process).
31 Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912) ; Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S. 35, 43–44 (1922) ; Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139 (1921) ; Life & Casualty Co. v. McCray, 291 U.S. 566 (1934) .
32 Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927) .
33 Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) .
34 Id. (finding sufficient constraints on jury discretion in jury instructions and in post–verdict review).

Supplement: [P. 1698, add to n.34:]

See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive damages awarded by a jury).

35 Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907) .
36 National Union v. Arnold, 348 U.S. 37 (1954) (the judgment debtor had refused to post a supersedeas bond or to comply with reasonable orders designed to safeguard the value of the judgment pending decision on appeal).

Supplement Footnotes

16 BMW v. Gore, 517 U.S. 559 (1996) (holding that a $2 million judgment for failing to disclose to a purchaser that a “new” car had been repainted was “grossly excessive” in relation to the State’s interest, as only a few of the 983 similarly repainted cars had been sold in that same State). But see TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title does not violate the Due Process Clause of the Fourteenth Amendment even though the jury awarded actual damages of only $19,000).
17 BMW v. Gore, 517U.S. at 574–75 517U.S. at 574–75 (1996).
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