Understanding Due Process

You probably hear, “I plead the Fifth,” at least once a week on some tv series or the news. If only television made the rest of the Fifth Amendment’s protections equally familiar.

We the People

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The Fifth Amendment to The Constitution of the United States, and a part of the Bill of Rights, does far more than give you a right not to incriminate yourself, it gives you the vital right to due process:

AMENDMENT V

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 offense 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.

The Fourteenth Amendment makes it clear that states are subject to the due process requirement:

14th AMENDMENT

SECTION 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Serving the summons is called Service of Process. Due Process depends upon service of the summons. Basically, the idea is that you must be notified of the court case so that you can defend yourself or your property. The summons, then, is the true beginning of a court case.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306314 (1950).

Jones v. Flowers

“”The consequences of Mullane and its progeny was to strike down statues that relied entirely on notification methods such as newspaper publication, courthouse postings, postings on real estate and the like, which had little chance of coming to the attention of the interested party,” writes Patrick J. Borchers in Jones v. Flowers: an Essay on a Unified Theory of Procedural Due Process.

Chief Justice Roberts, who delivered the opinion of the Court in Jones v. Flowers, began by citing Mullane,

Before a State may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner “notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950).

In Jones v. Flowers, the Court held that, after a state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. 

In my experience New Mexico’s state district court refused to accommodate my disability (I have a traumatic brain injury) and the 10th Circuit Court of Appeals said at one point that since I have been a “pro se litigant” more than once I don’t have a cause of action. To me it rather guts my right to due process to say that due process is only for those with the money for a lawyer.

In 2006, my case was so serious that I hired a lawyer, giving me the worst lawyer experience yet while costing me $5,000 of the little money I had. I am disappointed with myself for not following my own advice about acting pro se. And worse, I hired a second lawyer thinking that if I’d hired a better known and male lawyer to begin with it would have worked out better. That was an additional $2,500 mistake.

There was more than a hundred thousand on the line, so I can see why I made the mistake, but the basic fact is that hiring a lawyer was a mistake because it was all cost with no benefit.

Perhaps there was a benefit in that the woman lawyer’s work highlighted the corruption of Judge Michael Vigil who was “the Court”.

Tammy Schneider replied, 4:21:21, “The Courts consistently hold that you’re entitled to your notice and it’s cited in the pleadings.” At 4:21:36 she says, “If you look at,” the Court coughs, “the original application for default judgment, look at the certification, Ms. Kline was never… on the mailing list for that original application… look at the certification on the notice of foreclosure sale that was entered in December, she was never on the notice… there was no notice for that.” The Court interrupts, 4:22:03 “Well now normally that wouldn’t be required if you’ve been defaulted out, you’re out.” From the transcript.

Although the Judge Daniel Sanchez’s foreclosure judgment said I did not answer, the fact is that I answered and the answer was on record. Judge Sanchez clearly robo-signed the foreclosure prepared by Deutsche Bank’s lawyer.

Schneider said, 4:22:10 “Actually, there’s a Jones v. Flowers which just came down from… by the U.S. Supreme Court on April 26th, says it is required.” The Court argues, 4:22:18, “Out! How can it be required? If they filed no answer, let’s assume there was no answer.”  From the transcript.

So, there you have it, if you are up against a corrupt court, the fact you were denied due process and filed an answer may not help you if the corrupt court decides to “assume” you didn’t answer. That is to say, due process carries no weight in a corrupt court.

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