"Fourteenth Amendment" Defined & Explained
'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.
SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis or representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SECTION 3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Tuesday, April 12, 2011
Legal Definition of Due Process
Legal Definition of Due Process
The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to 'life, liberty or property, without due process of law.' Courts have issued numerous rulings about what this means in particular cases.
The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 69 (1972).
Under certain circumstances, state prison regulations may create a liberty interest that is protected under the Due Process Clause. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). To do so, the regulations must (1) contain `substantive predicates' governing an official's decision regarding a matter directly related to the individual; and (2) employ `explicitly mandatory language' specifying the outcome that must be reached upon a finding that the substantive predicates have been met. Id at 462-63.
The Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges against him. In order to determine whether a defendant has received constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). 'The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense.' Id.
The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
It is clear that a court cannot, without violating the Due Process Clause, compel an accused to wear identifiable prison clothing during his trial. Estelle v. Williams, 425 U.S. 501 (1976). This is because the practice furthers no essential state interest, and 'the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment' and impair the presumption of innocence, which is 'a basic component of a fair trial under our system of criminal justice.' Id. at 503, 504-05.
Prison clothing cannot be considered inherently prejudicial when the jury already knows, based upon other facts, that the defendant has been deprived of his liberty. See Estelle at 507 (recognizing that '[n]o prejudice can result from seeing that which is already known'); U.S. v. Stewart, 20 F.3d 911, 916 (8th Cir.'94) (holding that when circumstances permit shackling defendant during trial, compelling defendant also to wear prison clothing is not inherently prejudicial because his condition as a prisoner is already apparent to the jury); U.S. ex rel. Stahl v. Henderson, 472 F.2d 556, 556-57 (5th Cir.) (holding that, where defendant was charged with murdering another prisoner while confined in prison, no prejudice resulted from trying him in jail clothes), cert. denied, 411 U.S. 971 (1973).
Due process is best defined in one word--fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.
Example: Ezra and Sharon married in New York and had a son, Darwin. They divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin later moved to California to live with Sharon; Sharon sued Ezra for child support in California. Ezra claimed that because he didn't live in California and had never been to California it would be unfair (a denial of due process) for him to defend the child support lawsuit in California. The U.S. Supreme Court agreed, saying that Sharon should bring her child support request in New York. Kulko v. Superior Court, 436 U.S. 84 (1978).
The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person's basic rights to 'life, liberty or property, without due process of law.' Courts have issued numerous rulings about what this means in particular cases.
The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 69 (1972).
Under certain circumstances, state prison regulations may create a liberty interest that is protected under the Due Process Clause. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). To do so, the regulations must (1) contain `substantive predicates' governing an official's decision regarding a matter directly related to the individual; and (2) employ `explicitly mandatory language' specifying the outcome that must be reached upon a finding that the substantive predicates have been met. Id at 462-63.
The Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, see In re Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges against him. In order to determine whether a defendant has received constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). 'The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense.' Id.
The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
It is clear that a court cannot, without violating the Due Process Clause, compel an accused to wear identifiable prison clothing during his trial. Estelle v. Williams, 425 U.S. 501 (1976). This is because the practice furthers no essential state interest, and 'the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment' and impair the presumption of innocence, which is 'a basic component of a fair trial under our system of criminal justice.' Id. at 503, 504-05.
Prison clothing cannot be considered inherently prejudicial when the jury already knows, based upon other facts, that the defendant has been deprived of his liberty. See Estelle at 507 (recognizing that '[n]o prejudice can result from seeing that which is already known'); U.S. v. Stewart, 20 F.3d 911, 916 (8th Cir.'94) (holding that when circumstances permit shackling defendant during trial, compelling defendant also to wear prison clothing is not inherently prejudicial because his condition as a prisoner is already apparent to the jury); U.S. ex rel. Stahl v. Henderson, 472 F.2d 556, 556-57 (5th Cir.) (holding that, where defendant was charged with murdering another prisoner while confined in prison, no prejudice resulted from trying him in jail clothes), cert. denied, 411 U.S. 971 (1973).
Due process is best defined in one word--fairness. Throughout the U.S.'s history, its constitutions, statutes and case law have provided standards for fair treatment of citizens by federal, state and local governments. These standards are known as due process. When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.
Example: Ezra and Sharon married in New York and had a son, Darwin. They divorced and Sharon moved to California; Darwin stayed with Ezra. Darwin later moved to California to live with Sharon; Sharon sued Ezra for child support in California. Ezra claimed that because he didn't live in California and had never been to California it would be unfair (a denial of due process) for him to defend the child support lawsuit in California. The U.S. Supreme Court agreed, saying that Sharon should bring her child support request in New York. Kulko v. Superior Court, 436 U.S. 84 (1978).
"Jurisdiction" Defined & Explained
"Jurisdiction" Defined & Explained
A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes according to law and to carry his sentence into execution. The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory and his power in relation to his territory is called his territorial jurisdiction.
Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null. An inferior court has no jurisdiction beyond what is expressly delegated.
Jurisdiction is original when it is conferred on the court in the first instance, called original jurisdiction; or it is appellate, which is when an appeal is given from the judgment of another court. Jurisdiction is also civil where the subject-matter to be tried is not of a criminal nature; or criminal where the court is to punish crimes. Some courts and magistrates have both civil and criminal jurisdiction.
Jurisdiction is also concurrent, exclusive or assistant. Concurrent jurisdiction is that which may be entertained by several courts. It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other. Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action or matter in dispute. assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as for example, by a bill of discovery, by the examination of witnesses de bene esse or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses and the like.
It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. But where the court has jurisdiction of the matter and the defendant has some privilege which exempts him from the jurisdiction, he may wave the privilege.
Courts of inferior jurisdiction must act within their jurisdiction and so it must appear upon the record. But the legislature may, by a general or special law, provide otherwise.
When a court has the authority to decide a case, it is said to have jurisdiction over it. In all states, certain types of courts (often called, depending on the state, superior, circuit, county, district or family courts) are given specific and exclusive jurisdiction to handle family law cases. A family law court cannot, however, hear bankruptcies or criminal cases.
A geographic or subject area over which a court has authority. A magistrate court has jurisdiction over a town or city while the United States Supreme Court has jurisdiction over the entire country; A court's authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and/or type of case.
ADMIRALTY JURISDICTION exists if the event giving rise to a dispute occurs on navigable waters and has a sufficient relationship to traditional maritime activities. See Whitcombe v. Stevedoring Servs..., 2 F.3d 312, 14 n.2 (9th Cir.'93).
ANCILLARY JURISDICTION
The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. United States, 490 U.S. 545 (1989) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b)).
DIVERSITY JURISDICTION
if the amount in controversy exceeded $50,000 and plaintiff and defendants have diverse citizenships. See 28 U.S.C. S 1332.
The federal courts may exercise supplemental jurisdiction over claim because it arises out of the same nucleus of operative fact.
The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. U.S., 490 U.S. 545 ('89) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b), but not the procedure for impleader, Rule 14(a)).
The limited nature of federal courts' jurisdiction 'means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts.' Finley, Id. at 555.
Generally, parties cannot through consent confer jurisdiction upon the federal courts. See Commodity Futures Trading Comm. v. Schor, 106 S.Ct. 3245 ('86).
JURISDICTION & LONG-ARM STATUTES
California's long-arm statute, Cal. Civ. Proc. Code S 410.10. See Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 65 (9th Cir.'90). Section 410.10 provides for personal jurisdiction 'on any basis not inconsistent with the Constitution of this state or of the United States.' Id.
'A court may exercise either general or specific jurisdiction over a nonresident defendant.' Sher v. Johnson, 911 F.2d 1357, 61 (9th Cir.'90). Specific jurisdiction, the type at issue here, is appropriate when the following requirements are met: '(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.' Core-Vent Corp. v. Nobel..., 11 F.3d 1482, 85 (9th Cir.'93) (quoting Lake v. Lake, 817 F.2d 1416, 21 (9th Cir.'87)).
Some criteria for invoking local jurisdiction are if a defendant committed '(1) intentional actions (2) expressly aimed at [California] (3) causing harm, the brunt of which is suffered-- and which [IPA knew was] likely to be suffered--in [California?]' Core-Vent, at 1486.
There is also the question of whether the exercise of jurisdiction would be reasonable. See Core-Vent, at 1487.
In determining whether jurisdiction would comport with 'fair play and substantial justice,' courts balance the following seven factors: (1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Core-Vent at 1487-88.
When a defendant purposefully avails itself of the forum state, courts begin with a presumption of reasonableness, Haisten v. Grass Valley Medical ..., 784 F.2d 1392, 97 (9th Cir.'86), which can only be overcome by a '`compelling case that the presence of some other considerations would render jurisdiction unreasonable.' ' Core-Vent, 11 F.3d at 1487 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 478 ('85)).
Burden is the primary concern in an assessment of reasonableness. See FDIC v. British-American..., 828 F.2d 1439, 44 (9th Cir.'87). However, '[d]espite its strong weight, this factor alone is not dispositive.' Core-Vent at 1489. Moreover, '`[u]nless such inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.'' Hirsche v. Blue Cross, Blue Shield..., 800 F.2d 1474, 78 (9th Cir.'86)
Mail, faxes, and telephone calls to xxx, newsletter sent to xxx, dues collected from xxx members, and its affiliations with societies in xxx all demonstrate purposeful injection into xxx.
The next factor, conflict with foreign state's sovereignty, concerns the extent to which the exercise of jurisdiction would conflict with the sovereignty of the defendant's state. '`[T]he foreign-acts-with-forum-effects jurisdiction principle must be applied with caution, particularly in an international context.'' Core-Vent, at 1489. In determining how much weight to give this factor, courts look to the presence or absence of connections to the United States generally. Id. The presence of an affiliate, subsidiary, or agent is a significant consideration in evaluating sovereignty concerns. Cf. id. (citing FDIC, 828 F.2d at 1444).
With regard to California's interest in adjudicating a suit, 'California maintains a strong interest in providing an effective means of redress for its residents [who have been] tortiously injured.' Id. (internal quotations omitted).
Efficiency concerns the efficiency of the forum, particularly where the witnesses and evidence are likely to be located. Id. More recently, this factor has been discounted since '[m]odern advances in communications and transportation have significantly reduced the burden of litigating in another country.' Sinatra v. National Inquirer, 854 F.2d 1191, 99 (9th Cir.'88).
Although the importance of the forum to the plaintiff nominally remains part of this test, cases have cast doubt on its significance. See e.g., Core-Vent at 1490 ('A mere preference on the part of the plaintiff for its home forum does not affect the balancing[.]'); Roth, at 624 ('[N]o doctorate in astrophysics is required to deduce that trying a case where one lives is almost always a plaintiff's preference.')
Finally, a plaintiff bears the burden of proving the unavailability of an alternative forum. FDIC, at 1445.
When all the factors are examined and neither party is clearly favored in the final balance it becomes a judgement call for the court to make like in Roth, at 625, where: 'Appellees may be able to show that the exercise of jurisdiction might be unreasonable, but the closeness of the question manifests that they cannot do so in a compelling fashion.'
A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes according to law and to carry his sentence into execution. The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory and his power in relation to his territory is called his territorial jurisdiction.
Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null. An inferior court has no jurisdiction beyond what is expressly delegated.
Jurisdiction is original when it is conferred on the court in the first instance, called original jurisdiction; or it is appellate, which is when an appeal is given from the judgment of another court. Jurisdiction is also civil where the subject-matter to be tried is not of a criminal nature; or criminal where the court is to punish crimes. Some courts and magistrates have both civil and criminal jurisdiction.
Jurisdiction is also concurrent, exclusive or assistant. Concurrent jurisdiction is that which may be entertained by several courts. It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other. Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action or matter in dispute. assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as for example, by a bill of discovery, by the examination of witnesses de bene esse or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses and the like.
It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. But where the court has jurisdiction of the matter and the defendant has some privilege which exempts him from the jurisdiction, he may wave the privilege.
Courts of inferior jurisdiction must act within their jurisdiction and so it must appear upon the record. But the legislature may, by a general or special law, provide otherwise.
When a court has the authority to decide a case, it is said to have jurisdiction over it. In all states, certain types of courts (often called, depending on the state, superior, circuit, county, district or family courts) are given specific and exclusive jurisdiction to handle family law cases. A family law court cannot, however, hear bankruptcies or criminal cases.
A geographic or subject area over which a court has authority. A magistrate court has jurisdiction over a town or city while the United States Supreme Court has jurisdiction over the entire country; A court's authority to rule on the questions of law at issue in a dispute, typically determined by geographic location and/or type of case.
ADMIRALTY JURISDICTION exists if the event giving rise to a dispute occurs on navigable waters and has a sufficient relationship to traditional maritime activities. See Whitcombe v. Stevedoring Servs..., 2 F.3d 312, 14 n.2 (9th Cir.'93).
ANCILLARY JURISDICTION
The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. United States, 490 U.S. 545 (1989) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b)).
DIVERSITY JURISDICTION
if the amount in controversy exceeded $50,000 and plaintiff and defendants have diverse citizenships. See 28 U.S.C. S 1332.
The federal courts may exercise supplemental jurisdiction over claim because it arises out of the same nucleus of operative fact.
The exercise of jurisdiction over the pendent and ancillary actions had to establish a constitutionally required minimal nexus to the principal action and find explicit authorization in a jurisdiction-conferring statute. See Finley v. U.S., 490 U.S. 545 ('89) (determining whether ancillary jurisdiction existed by analyzing the constitutional minimum for jurisdiction and the jurisdictional statute at issue, 28 U.S.C. S 1346(b), but not the procedure for impleader, Rule 14(a)).
The limited nature of federal courts' jurisdiction 'means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts.' Finley, Id. at 555.
Generally, parties cannot through consent confer jurisdiction upon the federal courts. See Commodity Futures Trading Comm. v. Schor, 106 S.Ct. 3245 ('86).
JURISDICTION & LONG-ARM STATUTES
California's long-arm statute, Cal. Civ. Proc. Code S 410.10. See Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 65 (9th Cir.'90). Section 410.10 provides for personal jurisdiction 'on any basis not inconsistent with the Constitution of this state or of the United States.' Id.
'A court may exercise either general or specific jurisdiction over a nonresident defendant.' Sher v. Johnson, 911 F.2d 1357, 61 (9th Cir.'90). Specific jurisdiction, the type at issue here, is appropriate when the following requirements are met: '(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.' Core-Vent Corp. v. Nobel..., 11 F.3d 1482, 85 (9th Cir.'93) (quoting Lake v. Lake, 817 F.2d 1416, 21 (9th Cir.'87)).
Some criteria for invoking local jurisdiction are if a defendant committed '(1) intentional actions (2) expressly aimed at [California] (3) causing harm, the brunt of which is suffered-- and which [IPA knew was] likely to be suffered--in [California?]' Core-Vent, at 1486.
There is also the question of whether the exercise of jurisdiction would be reasonable. See Core-Vent, at 1487.
In determining whether jurisdiction would comport with 'fair play and substantial justice,' courts balance the following seven factors: (1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Core-Vent at 1487-88.
When a defendant purposefully avails itself of the forum state, courts begin with a presumption of reasonableness, Haisten v. Grass Valley Medical ..., 784 F.2d 1392, 97 (9th Cir.'86), which can only be overcome by a '`compelling case that the presence of some other considerations would render jurisdiction unreasonable.' ' Core-Vent, 11 F.3d at 1487 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 478 ('85)).
Burden is the primary concern in an assessment of reasonableness. See FDIC v. British-American..., 828 F.2d 1439, 44 (9th Cir.'87). However, '[d]espite its strong weight, this factor alone is not dispositive.' Core-Vent at 1489. Moreover, '`[u]nless such inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction.'' Hirsche v. Blue Cross, Blue Shield..., 800 F.2d 1474, 78 (9th Cir.'86)
Mail, faxes, and telephone calls to xxx, newsletter sent to xxx, dues collected from xxx members, and its affiliations with societies in xxx all demonstrate purposeful injection into xxx.
The next factor, conflict with foreign state's sovereignty, concerns the extent to which the exercise of jurisdiction would conflict with the sovereignty of the defendant's state. '`[T]he foreign-acts-with-forum-effects jurisdiction principle must be applied with caution, particularly in an international context.'' Core-Vent, at 1489. In determining how much weight to give this factor, courts look to the presence or absence of connections to the United States generally. Id. The presence of an affiliate, subsidiary, or agent is a significant consideration in evaluating sovereignty concerns. Cf. id. (citing FDIC, 828 F.2d at 1444).
With regard to California's interest in adjudicating a suit, 'California maintains a strong interest in providing an effective means of redress for its residents [who have been] tortiously injured.' Id. (internal quotations omitted).
Efficiency concerns the efficiency of the forum, particularly where the witnesses and evidence are likely to be located. Id. More recently, this factor has been discounted since '[m]odern advances in communications and transportation have significantly reduced the burden of litigating in another country.' Sinatra v. National Inquirer, 854 F.2d 1191, 99 (9th Cir.'88).
Although the importance of the forum to the plaintiff nominally remains part of this test, cases have cast doubt on its significance. See e.g., Core-Vent at 1490 ('A mere preference on the part of the plaintiff for its home forum does not affect the balancing[.]'); Roth, at 624 ('[N]o doctorate in astrophysics is required to deduce that trying a case where one lives is almost always a plaintiff's preference.')
Finally, a plaintiff bears the burden of proving the unavailability of an alternative forum. FDIC, at 1445.
When all the factors are examined and neither party is clearly favored in the final balance it becomes a judgement call for the court to make like in Roth, at 625, where: 'Appellees may be able to show that the exercise of jurisdiction might be unreasonable, but the closeness of the question manifests that they cannot do so in a compelling fashion.'
"Judicial Misconduct" Defined & Explained
"Judicial Misconduct" Defined & Explained
The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. Courts have said a trial judge must always remain fair and impartial. Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 09 (9th Cir.'89). He ' 'must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality.' ' Id. (quoting U.S. v. Harris, 501 F.2d 1, 10 (9th Cir.'74)).
At the same time, however, courts have recognized that a trial judge is 'more than an umpire.' U.S. v. Laurins, 857 F.2d 529, 37 (9th Cir.'88), cert. denied, 492 U.S. 906 ('89). It is perfectly appropriate for a judge to 'take part where necessary to clarify testimony and assist the jury in understanding the evidence.' U.S. v. De Sisto, 289 F.2d 833, 834 (2d Cir.'61). See also Laurins, at 537 (trial judge 'may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition'); U.S. v. Mostella, 802 F.2d 358, 361 (9th Cir.'86) (same); U.S. v. Poland, 659 F.2d 884, 93 (9th Cir.) (finding questions calculated to make testimony clearer to jury not improper), cert. denied, 454 U.S. 1059 (1981).
'[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent.' Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an 'extremely high level of interference' by the trial judge which creates 'a pervasive climate of partiality and unfairness.' U.S. v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.'82). See also Laurins, at 537 ('A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.').
Because this case comes to us in the posture of a habeas appeal, the question is whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the U.S. Constitution. Gayle v. Scully, 779 F.2d 802, 06 (2d Cir.'85), cert. denied, 479 U.S. 838 ('86); McBee v. Grant, 763 F.2d 811, 18 (6th Cir.'85).
Mostella, 802 F.2d at 362 (judge's excessive questions and sarcastic comments did not amount to 'extreme overstepping of his proper judicial role'--conviction affirmed); Poland, 659 F.2d at 894 (finding trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial).
A federal court has no supervisory authority over criminal proceedings in state courts. The only standards it can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not 'of sufficient gravity to warrant the conclusion that fundamental fairness has been denied.' Id. at 1572. See Gayle v. Scully, at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, 'approached but did not cross the line that permits [a ruling] that the Constitution has been violated').
The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. Courts have said a trial judge must always remain fair and impartial. Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 09 (9th Cir.'89). He ' 'must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality.' ' Id. (quoting U.S. v. Harris, 501 F.2d 1, 10 (9th Cir.'74)).
At the same time, however, courts have recognized that a trial judge is 'more than an umpire.' U.S. v. Laurins, 857 F.2d 529, 37 (9th Cir.'88), cert. denied, 492 U.S. 906 ('89). It is perfectly appropriate for a judge to 'take part where necessary to clarify testimony and assist the jury in understanding the evidence.' U.S. v. De Sisto, 289 F.2d 833, 834 (2d Cir.'61). See also Laurins, at 537 (trial judge 'may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition'); U.S. v. Mostella, 802 F.2d 358, 361 (9th Cir.'86) (same); U.S. v. Poland, 659 F.2d 884, 93 (9th Cir.) (finding questions calculated to make testimony clearer to jury not improper), cert. denied, 454 U.S. 1059 (1981).
'[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent.' Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an 'extremely high level of interference' by the trial judge which creates 'a pervasive climate of partiality and unfairness.' U.S. v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.'82). See also Laurins, at 537 ('A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.').
Because this case comes to us in the posture of a habeas appeal, the question is whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the U.S. Constitution. Gayle v. Scully, 779 F.2d 802, 06 (2d Cir.'85), cert. denied, 479 U.S. 838 ('86); McBee v. Grant, 763 F.2d 811, 18 (6th Cir.'85).
Mostella, 802 F.2d at 362 (judge's excessive questions and sarcastic comments did not amount to 'extreme overstepping of his proper judicial role'--conviction affirmed); Poland, 659 F.2d at 894 (finding trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial).
A federal court has no supervisory authority over criminal proceedings in state courts. The only standards it can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not 'of sufficient gravity to warrant the conclusion that fundamental fairness has been denied.' Id. at 1572. See Gayle v. Scully, at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, 'approached but did not cross the line that permits [a ruling] that the Constitution has been violated').
"False Imprisonment" Defined & Explained
"False Imprisonment" Defined & Explained
Any intentional detention of the person of another not authorized by law is false imprisonment. It is any illegal imprisonment, without any process whatever, or under color of process wholly illegal, without regard to the question whether any crime has been committed or a debt due.
The remedy is an order to be restored to liberty by writ of habeas corpus and to recover damages for the injury by action of trespass. To punish the wrong done to the public by the false imprisonment of an individual, the offender may be indicted.
Under California law, false imprisonment is the 'nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.' Fermino v. Fedco, Inc., 872 P.2d 559, 567 (Cal.'94) (quoting Molko v. Holy Spirit Ass'n, 762 P.2d 46, 63 (Cal.'88)). A false imprisonment action may also be maintained if 'the defendant unlawfully detains the [plaintiff] for an unreasonable period of time' after an otherwise legal seizure or arrest. Lincoln v. Grazer, 329 P.2d 928, 30 (Cal.Ct.App.'58). Once the plaintiff has proven the elements of the tort, the defendant has the burden to establish that the detention or arrest was legally justified. See Cervantes v. J.C. Penney Co., 595 P.2d 975, 982 (Cal.'79).
Any intentional detention of the person of another not authorized by law is false imprisonment. It is any illegal imprisonment, without any process whatever, or under color of process wholly illegal, without regard to the question whether any crime has been committed or a debt due.
The remedy is an order to be restored to liberty by writ of habeas corpus and to recover damages for the injury by action of trespass. To punish the wrong done to the public by the false imprisonment of an individual, the offender may be indicted.
Under California law, false imprisonment is the 'nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.' Fermino v. Fedco, Inc., 872 P.2d 559, 567 (Cal.'94) (quoting Molko v. Holy Spirit Ass'n, 762 P.2d 46, 63 (Cal.'88)). A false imprisonment action may also be maintained if 'the defendant unlawfully detains the [plaintiff] for an unreasonable period of time' after an otherwise legal seizure or arrest. Lincoln v. Grazer, 329 P.2d 928, 30 (Cal.Ct.App.'58). Once the plaintiff has proven the elements of the tort, the defendant has the burden to establish that the detention or arrest was legally justified. See Cervantes v. J.C. Penney Co., 595 P.2d 975, 982 (Cal.'79).
Legal Definition of Protective Order
Legal Definition of Protective Order
In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute, an order that prevents one party from approaching another, often within a specified distance.
Any order issued by a court which is meant to protect a person from harm or harassment.
A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination). Less often, a temporary restraining order issued to prohibit domestic violence is referred to as a protective order.
The state has two substantial interests in regulating pre-trial discovery: one is to facilitate the search for truth and promote justice (Hickman v. Taylor (1947) 329 U.S. 495, 507); the other is to protect the legitimate privacy interests of the litigants and third parties. (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34-35) The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. (Id. at p. 34.) The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of "good cause" (F.R.C.P. rule 26, subd. (c); Code Civ. Proc., section 2031, subd. (e).) (See generally Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377.) "The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery." (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 36.)
Secrecy agreements and protective orders impair the public's access to discovery records as well as the parties' First Amendment right to disseminate information to the public. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20 at pp. 31-32.) Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether good cause exists for a protective order. (See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1180 [unsealing documents because information relevant to public health]; and see discussion in Timmons, Protective Orders in Products Liability Litigation: Striking the Proper Balance (1991) 48 Wash. & Lee L. Rev. 1503, 1528.)
A manufacturer has a legitimate interest in protecting its trade secrets and other confidential proprietary information. The relevancy and reliability of information obtained during discovery has not been subjected to judicial scrutiny and might never be disclosed at trial. Clearly, the release of inaccurate, unreliable or misleading information could unfairly damage the manufacturer's reputation and alarm the public unnecessarily. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 35.)
In Seattle Times Co. v. Rhinehart, supra, the Court addressed the issue of whether a protective order restricting a party from disseminating information it obtained during discovery violated that party's First Amendment Rights. After recognizing and discussing the interests of the restricted party and the public in disseminating the information and the interest of the party which produced the information in keeping it confidential, the Court held "where, as in this case, a protective order is entered on a showing of good cause . . . , is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." (467 U.S. at p. 37.)
"Presumably, due to its temporary nature, [and] its infringement upon the public right to know, . . . a sealing or confidentiality order in a civil case is always subject to continued review and modification, if not termination, upon changed circumstances." (Mary R. v. B & R. Corp. (1983) 149 Cal.App.3d 308, 317.) See also American Tel. & Tel. Co. v. Grady (7th Cir. 1979) 594 F.2d 594, 597 ["exceptional considerations warranting the alteration of an agreed protective order exist in the present case."]
California imposes no confidentiality requirements with respect to information obtained through discovery except upon motion for good cause shown. (See, e.g., Code Civ. Proc., section 2031, subd. (e).) Thus, in the absence of an order obtained on a showing of good cause, nothing in California law would prohibit a party sharing documents obtained through discovery with a nonparty.
In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute, an order that prevents one party from approaching another, often within a specified distance.
Any order issued by a court which is meant to protect a person from harm or harassment.
A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination). Less often, a temporary restraining order issued to prohibit domestic violence is referred to as a protective order.
The state has two substantial interests in regulating pre-trial discovery: one is to facilitate the search for truth and promote justice (Hickman v. Taylor (1947) 329 U.S. 495, 507); the other is to protect the legitimate privacy interests of the litigants and third parties. (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34-35) The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. (Id. at p. 34.) The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of "good cause" (F.R.C.P. rule 26, subd. (c); Code Civ. Proc., section 2031, subd. (e).) (See generally Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377.) "The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery." (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 36.)
Secrecy agreements and protective orders impair the public's access to discovery records as well as the parties' First Amendment right to disseminate information to the public. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20 at pp. 31-32.) Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether good cause exists for a protective order. (See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1180 [unsealing documents because information relevant to public health]; and see discussion in Timmons, Protective Orders in Products Liability Litigation: Striking the Proper Balance (1991) 48 Wash. & Lee L. Rev. 1503, 1528.)
A manufacturer has a legitimate interest in protecting its trade secrets and other confidential proprietary information. The relevancy and reliability of information obtained during discovery has not been subjected to judicial scrutiny and might never be disclosed at trial. Clearly, the release of inaccurate, unreliable or misleading information could unfairly damage the manufacturer's reputation and alarm the public unnecessarily. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 35.)
In Seattle Times Co. v. Rhinehart, supra, the Court addressed the issue of whether a protective order restricting a party from disseminating information it obtained during discovery violated that party's First Amendment Rights. After recognizing and discussing the interests of the restricted party and the public in disseminating the information and the interest of the party which produced the information in keeping it confidential, the Court held "where, as in this case, a protective order is entered on a showing of good cause . . . , is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." (467 U.S. at p. 37.)
"Presumably, due to its temporary nature, [and] its infringement upon the public right to know, . . . a sealing or confidentiality order in a civil case is always subject to continued review and modification, if not termination, upon changed circumstances." (Mary R. v. B & R. Corp. (1983) 149 Cal.App.3d 308, 317.) See also American Tel. & Tel. Co. v. Grady (7th Cir. 1979) 594 F.2d 594, 597 ["exceptional considerations warranting the alteration of an agreed protective order exist in the present case."]
California imposes no confidentiality requirements with respect to information obtained through discovery except upon motion for good cause shown. (See, e.g., Code Civ. Proc., section 2031, subd. (e).) Thus, in the absence of an order obtained on a showing of good cause, nothing in California law would prohibit a party sharing documents obtained through discovery with a nonparty.
Monday, April 11, 2011
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