Power of States to Regulate Procedures

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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.

In general, as long as parties receive sufficient notice,1 an opportunity to defend their protected interests,2 and any other required procedural safeguards,3 the Due Process Clause of the Fourteenth Amendment does not specify the particular forms of procedure to be used in state courts.4 The states may regulate the manner in which rights may be enforced and wrongs remedied,5 and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.6 Whether legislative action in such matters is deemed to be wise or proves efficient, whether it causes hardship for a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The Supreme Court has explained that the function of the Fourteenth Amendment is negative rather than affirmative7 and in no way obligates the states to adopt specific measures of reform.8

A state may impose certain conditions on the right to institute litigation. However, foreclosure of all access to the courts through imposition of financial barriers is subject to constitutional scrutiny and must be justified by a state interest of suitable importance. Thus, the Court has upheld a state law that denied access to the courts to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.9 The Court has also held that a state, as the price of opening its tribunals to a nonresident plaintiff, may impose 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.10 For similar reasons, the Court did not deem arbitrary or unreasonable a requirement for a chemical analysis as a condition precedent to a suit to recover for damages to crops from allegedly deficient fertilizers, where other evidence was also allowed.11 By contrast, where a state has monopolized the avenues for settling disputes between persons by prescribing judicial resolution, and where a dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to persons unable to pay its fees.12

Just as a state may condition the right to institute litigation, it may also establish terms for raising certain defenses. For instance, the Court has held that a state may validly provide that a person sued in a possessory action cannot bring an action to try title until after judgment is rendered and he has paid the judgment.13 A state may limit available defenses 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.14 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; the Court has held that no person has a vested right in such defenses.15 Similarly, a nonresident defendant in a suit begun by foreign attachment cannot challenge the validity of a statute that requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend, even if he has no resources or credit other than the property attached.16

Once a suit is underway, the amendment of pleadings is largely within the discretion of the trial court and, absent a gross abuse of discretion, there is no ground for reversal. Thus, in one case, the Court found no denial of due process in rendition of a foreclosure decree without leave to file a supplementary answer that sought to raise a meritless defense.17

The Due Process Clause allows states significant discretion in whether to provide for jury trials or appeals in civil cases. Unlike in criminal trials,18 the Court has not deemed jury trials essential to due process in state civil proceedings, and has not interpreted the Fourteenth Amendment to restrain the states in retaining or abolishing civil juries.19 Thus, the Court has upheld state laws abolishing juries in proceedings to enforce liens,20 mandamus21 and quo warranto22 actions, and eminent domain23 and equity proceedings.24 States are also free to adopt innovations respecting selection and number of jurors. States may allow verdicts to be rendered by ten out of twelve jurors rather than a unanimous jury,25 and may establish petit juries containing eight jurors rather than the conventional twelve.26

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.27 But, if an appeal is afforded, the state must not structure it so as to arbitrarily deny to some persons the right or privilege available to others.28

State legislatures and state courts have substantial discretion to allocate the costs of litigation and impose awards of damages or financial penalties. The Supreme Court has held that it is up to courts to determine what costs are allowed by law, and an erroneous judgment of what the law allows does not deprive a party of property without due process of law.29 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.30

The Court has also upheld against due process challenge a statutory procedure whereby a prosecutor is adjudged liable for costs, and committed to jail in default of payment thereof, when the court or jury finds that he instituted the prosecution without probable cause and from malicious motives.31 Also, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages 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.32

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 money shall be imprisoned and 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, even if the defendant has made restitution.33 The Court has explained that, whether the fine is understood as a penalty or punishment or a civil judgment, the convict is required to pay it as the result of his or her crime. On the other hand, when an appellant was held in contempt for frustrating enforcement of a judgment against it by refusing to surrender certain assets, the Court held that dismissal of an appeal from the original judgment was not a penalty for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.34

To deter careless destruction of human life, a state may allow punitive damages in actions against employers for deaths caused by the negligence of their employees,35 and may also allow punitive damages for fraud perpetrated by employees.36 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.37 Although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,” 38 the Court has indicated that a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.” 39 A court may determine the applicable limits 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.40 In addition, the Due Process Clause “forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties.” 41

1: See Amdt14.S1.5.4.3 Notice of Charge and Due Process.
2: See Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing.
3: See Amdt14.S1.5.4.5 Impartial Decision Maker; Amdt14.S1.5.4.6 Additional Requirements of Procedural Due Process.
4: Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900). 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.” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v. Louisiana, 194 U.S. 258, 263 (1904); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176, (1912). 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).
5: Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa Cent. 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).
6: Cincinnati St. Ry. v. Snell, 193 U.S. 30, 36 (1904).
7: The Court has, however, imposed some restrictions on state procedures that require substantial reorientation of process. While this 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 been restrained with regard to details. See, e.g., Lindsey v. Normet, 405 U.S. at 64–69.
8: 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 untrammeled 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 that 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).
9: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Nor did the retroactive application of this statutory requirement to actions pending at the time of its adoption violate 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.
10: Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 303 U.S. 59 (1938).
11: Jones v. Union Guano Co., 264 U.S. 171 (1924).
12: Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) (parental status termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982) (permanent termination of parental custody).
13: Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).
14: 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).
15: Bowersock v. Smith, 243 U.S. 29, 34 (1917); Chi., Rock Island & Pac. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. S. Pac. 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).
16: Ownbey v. Morgan, 256 U.S. 94 (1921).
17: Sawyer v. Piper, 189 U.S. 154 (1903).
18: Duncan v. Louisiana, 391 U.S. 145 (1968). See also Amdt6.4.1 Overview of Right to Trial by Jury.
19: Walker v. Sauvinet, 92 U.S. 90 (1876); N.Y. Cent. R.R. v. White, 243 U.S. 188, 208 (1917).
20: Marvin v. Trout, 199 U.S. 212, 226 (1905).
21: In re Delgado, 140 U.S. 586, 588 (1891).
22: Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 201, 206 (1884).
23: Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897).
24: Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894).
25: See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).
26: See Maxwell v. Dow, 176 U.S. 581, 602 (1900).
27: Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).
28: Id. at 74–79 (conditioning appeal in eviction action upon tenant posting bond, with two sureties, in twice the amount of rent expected to accrue pending appeal, is invalid when no similar provision is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 (1988) (assessment of 15% penalty on party who unsuccessfully appeals from money judgment meets rational basis test under equal protection challenge, since it applies to plaintiffs and defendants alike and does not single out one class of appellants).
29: Ballard v. Hunter, 204 U.S. 241, 259 (1907).
30: Mo., Kan. & Tex. Ry. v. Cade, 233 U.S. 642, 650 (1914). Congress may, however, severely restrict attorney’s fees in an effort to keep an administrative claims proceeding informal. Walters v. Nat’l 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 U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations under the Black Lung Benefits Act prohibiting contractual fee arrangements).
31: 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).
32: Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Chi. & 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).
33: Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).
34: Nat’l 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).
35: Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).
36: Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).
37: Id. (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). 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).
38: Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989).
39: BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (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); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding that a $145 million judgment for refusing to settle an insurance claim was excessive as it included consideration of conduct occurring in other states). But see TXO 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 even though the jury awarded actual damages of only $19,000).
40: BMW, 517 U.S. at 574–75 (1996). The Court has suggested that awards exceeding a single-digit ratio between punitive and compensatory damages would be unlikely to pass scrutiny under due process, and that the greater the compensatory damages, the less this ratio should be. Campbell, 538 U.S. at 424 (2003).
41: Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (punitive damages award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).