SUBSTANTIVE DUE PROCESS
The words “due process” suggest a concern with procedure rather than substance, and that is how many–such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”–understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process–such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution.”
Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).
DISTINGUISHING DUE PROCESS
Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.
Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).
Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver’s licenses, government jobs, and welfare enrollment are “rights” or a “privilege.” An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.
The Plaintiff is the party that brings the complaint to the court, which can be a individual, groups or group of individuals who brings forth a complaint or matter to the court where he/she feels they have been wronged.
The Defendant is the party sued in a civil matter, the party sued by the plaintiff; in a criminal matter, the defendant is the party who is prosecuted.
The Due Process clauses of the United States Constitution prohibit courts from hearing a case that could adversely affect a party’s interest unless that party has been given proper notice. To satisfy this notice requirement, notice must be reasonably calculated, under the circumstances, to inform all interested parties that a lawsuit is pending and that it could adverse affect their interests.
The degree of required notice varies depending on what type of jurisdiction a court intends to exercise. To exercise in personam jurisdiction, in-hand service of process is usually required. For in rem actions, which can affect the interests of anyone in the world, the plaintiff usually must inform all known parties of interest by a reasonably reliable means, and may then inform the rest of the world by “notice by publication” – purchasing a notice in a local newspaper multiple times over a period of several weeks. In tricky cases, courts work with plaintiffs to identify the best way of meeting notice requirements.
Notice is not a mere formality, as the Supreme Court recently discussed in Jones v. Flowers. In Jones v. Flowers, a state seized and sold property for unpaid property taxes. A certified letter meant to notify the owner of the impending sale was returned to the state as “unclaimed.” Afterwards, the state made no additional attempt to contact the owner directly. The Court rejected the state’s notice as insufficient, emphasizing that notice “must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”
Because of the constitutional importance of insuring proper notice, courts will not forgive improper notice even where a party receives actual notice.
Process Servers are people who deliver court documents for a living. This particular summons and complaint is the initial beginning of a hearing or trial. Some specialize in delivering papers to defendants who are deliberately trying to evade service of process. Many jurisdictions license and regulate process servers.
SERVICE OF PROCESS
the delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called “substituted service” can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office or with a designated “agent for acceptance of service” (often with name and address filed with the state’s Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.