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FRCP > Due Process > Flashcards

Due Process Flashcards

1
Q

Reasons for Allowing Litigation

A

Dignity, Participation, Deterrence, Effectuation (get what is rightfully yours)

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2
Q

Due process requires..

A

(3) Notice, Opportunity to be heard, neutral decision maker and arguably counsel

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3
Q

Federal due process

A

Fifth amendment

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4
Q

State due process

A

Fourteenth amendment

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5
Q

Ex parte injunction can be issued ___ if ____

A

Without notice, immediate and irreparable injury

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6
Q

Ex parte injunction can only last

A

14 days

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7
Q

A hearing for an ex parte injunction must

A

Take place asap

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8
Q

What case does collateral bar rule come from

A

Walker

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9
Q

Walker rule

A

Injunction can’t be violated even if it is wrong. Only can be challenged through the courts

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10
Q

Walker holding

A

Contempt upheld, would not hear constitutionality

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11
Q

What was irreparable injury at stake in Walker?

A

Safety and peace of public

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12
Q

Why was Walker injunction not frivolous

A

Govt interest in regulating streets/public places

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13
Q

Why collateral bar

A

Ct resources not infinite need to draw line somewhere, already have appeal

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14
Q

Why Walker still in contempt for violating ex parte injunction

A

Knew about injunction, violated anyways AND didn’t apply for permit at all

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15
Q

Why not special Walker rule for anti protest injunction

A

CivPro should be transsubstantive

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16
Q

Collateral bar not just about cases you bring but also ones that you …

A

Find yourself in

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17
Q

Exceptions to collateral bar rule

A

No notice, Ct no jurisdiction, corruption, delay in first trial

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18
Q

Under R64, seizure is done under —

A

Laws of the state

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19
Q

Sniadach held that due process requires —

A

Notice and hearing

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20
Q

Sniadach held state statute permitting —- violated due process

A

Garnishment of wages essential to livelihood

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21
Q

Goldberg established the —- due process balancing test

A

Old

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22
Q

Goldberg Rule: Due process requires weighing —

A

Govt interests vs private interests

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23
Q

Holding of Goldberg that welfare recipients must get — losing benefits

A

Live pre termination hearing before

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24
Q

Goldberg ruled that welfare benefits were ..

A

Property

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25
Q

Goldberg ruled for oral argument on basis that

A

Better way for recipients to defend themselves

26
Q

Goldberg found that recipients interest was — and govt was to —

A

Live, promote welfare

27
Q

In Goldberg, private interests outweigh govt because ..

A

Interest in life and govt interest in promoting welfare outweighs concern of bad faith applicants

28
Q

Fuentes rule

A

Notice and opportunity to be heard required before court can deprive person of their property

29
Q

Fuentes found that state replevin provisions violated due process in that they —

A

Denied right to opportunity to be heard before chattels are taken

30
Q

Fuentes found that notice and hearing must be granted when deprivation …

A

Can still be prevented

31
Q

Three reasons for Fuentes holding (3)

A

Due process when deprivation can be prevented, don’t want to distinguish between property AND collateral attack allowed

32
Q

Fuentes allowed to bring collateral attack because ..

A

She is one shot player, Firestone repeat

33
Q

North Georgia Fishing held that a —- violated due process

A

Garnishment system requiring only filing with clerk

34
Q

Mitchell upheld a sequestration system requiring …

A

Affidavit, creditors bond AND ex parte judicial decision

35
Q

Matthews — Goldberg

A

Eroded

36
Q

Matthews Test is —

A

Balancing test of private interest, risk of erroneous deprivation and value of additional safeguards AND government interest

37
Q

Mathew’s holding

A

Evidentiary hearing not required for due process

38
Q

What is private interest in Mathews and how does it compare to Goldberg?

A

Losing disability benefits, not as bad as welfare

39
Q

What is risk of error/additional safeguards in Mathews?

A

Medical assessments unbiased and standard, hearings not as helpful as Goldberg because just repeat doctors

40
Q

Inconsistency is — with due process

A

Incompatible

41
Q

What is the government interest in Mathews?

A

Administrative burden and fraud

42
Q

Connecticut v Doehr previous rule allowed attorneys to — if they —

A

Attach real property, filed affidavit alleging likelihood D would withhold or conceal

43
Q

Connecticut held that notice —-

A

Follows attachment

44
Q

Why did Connecticut violate due process?

A

requires pre attachment notice and hearing, especially since here attachment had nothing to do with claim

45
Q

Betts found right to appointed counsel only if

A

Denial of fundamental fairness

46
Q

How often have courts found for special circumstances under Betts?

A

Never

47
Q

Gideon — Betts for —-

A

Overruled, criminal felony defendants

48
Q

Overruled Betts for criminal felony defendants

A

Gideon

49
Q

Argensinger overruled Betts for —

A

Misdemeanor defendants sentenced to incarceration

50
Q

Overruled Betts for misdemeanor defendants sentenced to incarceration

A

Argensinger

51
Q

Holding of Scott v Illinois

A

Misdemeanor defendants no right to counsel if only facing fine

52
Q

Holding in re Gault

A

Right to counsel in civil juvenile delinquency that results in detention

53
Q

Right to counsel in civil juvenile delinquency that results in detention

A

In re Gault

54
Q

Morrissey holding

A

No right to counsel in parole or probation revocation hearings

55
Q

No right to counsel in parole or probation revocation hearings

A

Morrissey

56
Q

Lassiter holding

A

No right to counsel when procedure to terminate parental rights

57
Q

No right to counsel when procedure to terminate parental rights

A

Lassiter

58
Q

Turner holding (3)

A

No right to counsel in civil contempt even if incarceration on the line, must have alternative procedural safeguards to determine whether counsel should be appointed, can give remedy not asked for

59
Q

Why does Turner court not give right to counsel when liberty at stake.?

A

Can leave prison as soon as he pays (can cure contempt)

60
Q

What is Mathews analysis in Turner

A
  1. Liberty interest 2. Risk of error without lawyer high and can be easily eliminated by providing one 3. Cost is to opposing counsel (not about attorney fees)
61
Q

What is cost in Turner

A

Unfair to Opposing parent

FRCP (18 decks)

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