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Winter 1992 Sin, Scandal, and Substantive Due Process Wendy Collins Perdue University of Richmond, [email protected]
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Recommended Citation Wendy Collins Perdue, Sin, Scandal, and Substantive Due Process, 18 Litigation 41 (1992).
This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Legal Lore Sin, Scandal, and Substantive Due Process
by Wendy Collins Perdue
For students of civil procedure, the Oregon would be made available to names Pennoyer and Neff evoke these homesteaders. The speculation proved dry facts: In an initial suit, one J.H. to be correct, and Marcus Neff was one Mitchell sued Neff in Oregon state of the earliest settlers to claim land court. Because Neff could not be found under the Oregon Donation Act. within Oregon, he was served by pub To qualify for land under the lication. Neff never appeared, and a Donation Act, one had to be a citizen default judgment was entered against living in Oregon and submit a request him. To satisfy the judgment, Mitchell for land by December 1, 1850. Inter attached Neff's Oregon real estate. The estingly, Neff's land request was property was sold at auction, and originally dated December 15, 1850, Pennoyer later acquired it. Nearly a which would have made it too late, decade later, Neff returned to Oregon but "December" was crossed out and and brought suit in federal court to "September" written in. This is the evict Pennoyer from the land, claiming first of many instances suggesting that that the original judgment was invalid. events surrounding Pennoyer v. Neff The Supreme Court found for Neff in may have been tainted by fraud and an opinion that has become a corner deception. stone of personal jurisdiction doctrine. Not surprisingly, registration of a Pennoyer v. Neff, 95 U.S. 714 (1877). Donation Act claim required a certain Those familiar facts do not begin to amount of paperwork. In addition to tell the full story, which begins with a the initial claim, the homesteader was young man, Marcus Neff, heading required after four years to submit the across the country by covered wagon affidavits of two disinterested people train, presumably to seek his fortune. affirming that the homesteader had cul Neff left Iowa in early 1848 at the age tivated the land for his own use. Neff of 24, joining a wagon train of five secured two affidavits, which were companies of wagons. At that time, the submitted prematurely in 1853 and question of Oregon statehood was resubmitted in 1856. The 1856 submis being considered in Congress, and sion should have entitled Neff to there was much speculation that large receive a patent to the land, but the tracts of the vast, undeveloped land of government was notoriously slow in processing claims, and 10 years passed before Neff received his land patent. Ms. Perdue is associate professor of law at Early in 1862, Neff made the unfor Georgetown University Law Center. This article tunate decision to consult a local is adapted from Perdue, "Sin, Scandal, and Substantive Due Process; Personal Jurisdiction Portland attorney, J.H. Mitchell. and Pennoyer Reconsidered, " 62 Wash. L Rev. Establishing the facts about events in 479(1987). which Mitchell was involved is partic-
Litigation Winter 1992 41 Volume 18 Number2 ularly difficult because, as one research Mitchell's ethical standards as a cution. Interestingly, although Mitchell librarian commented, "Mitchell was lawyer were no higher than his ethics had alleged that Neff could not be the kind of person who ended his cor as a politician. As the Oregonian found, the Oregon land office appar respondence with 'Bum this letter after observed in 1882: "His political meth ently had no difficulty delivering the reading."' Although the nature of the ods are indeed pitched on a sufficiently patent to Neff. legal services is unclear, Neff may have low scale but not below his methods as Under Oregon law, to secure execu consulted Mitchell in an attempt to a lawyer." Given Mitchell's reputation, tion, one had to obtain a writ of execu expedite the paperwork concerning his one might at least question whether tion and post and publish notice for land patent. Neff was illiterate, and at Neff in fact owed the money Mitchell four weeks. All the steps were appar the time he consulted Mitchell, the gov claimed was due. Neff paid Mitchell ently taken. On August 7, 1866, the ernment had still not issued his patent. $6.50, but Mitchell claimed he was property was sold at a sheriff's auction Mitchell, moreover, specialized in land owed an additional $209. Although for $341.60. Notably, the buyer was not matters. In mid-1862, several months Mitchell's services were rendered Sylvester Pennoyer, as the Supreme after Neff first consulted Mitchell, between early 1862 and mid-1863, Court opinion and commentators have another affidavit was filed on Neff's Mitchell waited several years to take implied. The property was purchased behalf. Several months thereafter, Neff legal action against Neff, perhaps pur by none other than J.H. Mitchell, who received a document from the govern posely waiting until Neff left the state. three days later assigned the property ment certifying that he had met the cri On November 3, 1865, Mitchell filed to Sylvester Pennoyer. teria for issuance of a patent. suit against Neff in Oregon state court, Pennoyer had much in common with Whatever Neff's reasons for seeking seeking $253.14 plus costs. Mitchell Mitchell. He, like Mitchell, was a Mitchell's legal services, he certainly secured jurisdiction under ·Oregon Portland lawyer, involved in politics could have done better in his choice of statute § 55, which provided that after (Mitchell was a Republican; Pennoyer lawyers. "J.H. Mitchell" was actually due diligence, if the defendant cannot was a Democrat) and active in real the Oregon alias of one John Hipple. be found within the state, he may be estate speculation. There is no evidence Hipple had been a teacher in Penn served by publication. Mitchell sup available on whether Pennoyer had sylvania, who, after being forced to plied an affidavit in which he asserted actual knowledge of or connection to marry the 15-year-old student whom he that Neff was living somewhere in the original action, though it is certainly had seduced, left teaching and took up California and could not be found. possible. Moreover, because he took law. He practiced with a partner for Mitchell provided no details as to what title through Mitchell, it is not clear that several years but apparently concluded he had done to locate Neff, and given he should have been treated as a true that it was time to move on to greener Mitchell's lack of scruples, one might innocent third-party purchaser. pastures. Thus, in 1860 Hipple headed wonder whether Neff's whereabouts It appears that for the next eight west, taking with him $4,000 of client were indeed unknown to Mitchell and years, Pennoyer peacefully minded his money and his then-current paramour, whether he had made any attempt to own business, doing those things one a local school teacher. They made their locate Neff. Notice of the lawsuit was would expect of any property owner: way to California, where Hipple aban published for six weeks in the Pacific He paid taxes, cut some timber, and doned the teacher, ostensibly because Christian Advocate, a weekly newspa sold a small portion of the land. The she was sick and her medical expenses per published under the authority of the peace was broken in 1874 when Neff had become too burdensome, and Methodist Episcopal Church and reappeared on the scene. moved on to Portland, Oregon. There, devoted primarily to religious news and The evidence suggests that Neff using the name John H. Mitchell, he inspirational articles. began making trouble for Pennoyer quickly established himself as a suc In initiating the litigation, Mitchell several months before he actually filed cessful lawyer, specializing in land liti made what ultimately proved to be a suit, because in July of 1874, Pennoyer gation and railroad right-of-way cases. crucial mistake. Mitchell's affidavit began taking steps to protect the valid He also remarried without bothering asserted that Neff owned property, but ity of his title. It seems that when the to divorce his first wife. As one his he did not attach the property at that property was originally sold at the sher torian has observed, Mitchell's success time. Mitchell most likely neglected iff's auction, local officials had been as a lawyer cannot be attributed to this step because Oregon law did not somewhat lax in the matter of title. The either intellectual or oratorical skills; appear to require attachment as a pre sheriff's deed was not signed until five rather, his strengths included excep requisite for reliance on § 55. months after the sale, and then it was tional political instincts, a generous A default in judgment in the amount signed by the deputy sheriff, not the disposition, and a friendly handshake. of $294.98 was entered against Neff on sheriff. In an apparent effort to ensure What he lacked in ethics and ability, he February 19, 1866. Although Mitchell that this carelessness was not the basis made up for with persistence and a had an immediate right to execute on for an attack on his title, Pennoyer desire for success. In his subsequent the judgment, he waited until early July obtained the signature of the then political career, he became known as a of 1866 to seek a writ of execution, current sheriff on a second deed dated man whose "political ethics justified possibly waiting for the arrival of July 21, 1874. Not taking any chances, any means that would win the battle." Neff's land patent. The title, which was three days later he acquired still a third Mitchell was first elected to the state sent from Washington, D.C., on March deed, this one signed by the man who senate in 1862, became president of the 22, 1866, would have taken several had been sheriff at the time of the sale. state senate in 1864, was seven times a months to arrive in Oregon and thus But all the precautions were for naught; candidate for the U.S. Senate, and was probably arrived in Oregon shortly ultimately, Pennoyer was evicted. elected in four of those contests. before Mitchell sought the writ of exe- (please turn to page 56)
Litigation Winter 1992 Volume 18 Number 2 If you are fortunate enough to have Olmstead v. United States, 277 U.S. Senate election. Deady recorded in his the prosecution hand you an issue 438, 485, 48 S. Ct. 564, 575 (1928). diary that Ben Holliday, a political ally involving questionable prosecutorial The prosecutor wields awesome of Mitchell's, had reportedly spent conduct, play it to the jury. Particularly power in our system of justice. Only $20,000 in bribes to buy the votes when an unethical practice will not the combined willingness of the courts, necessary to ensure Mitchell's election. result in reversible error but can be defense lawyers, and prosecutors to Deady, along with the U.S. attorney in exposed at trial, you can wreak havoc vigorously challenge prosecutorial Oregon, pushed for a prompt and with the prosecution's case. misconduct can prevent abuse of that thorough investigation of the matter. Prosecutors have historically used power. ~ When one grand jury refused to return the media to further political agendas an indictment, Deady ordered a new or to respond to public outcries for grand jury. action. There are situations in which It looked as if indictments might be putting the prosecution on trial in the returned until Mitchell managed to use media may be in your client's best further bribery to bring the investiga interest. At the very least, a defense Legal tion to a halt. The attorney general at lawyer can throw a prosecutor off that time, George H. Williams, also balance by focusing on the pros Lore from Oregon, had recently been nomi ecution's conduct rather than the nated to the U.S. Supreme Court, but defendant's. his confirmation was in doubt. Senator Whether an issue involves with (continued from page 42) Mitchell approached Williams and holding of key exculpatory evidence The case of Neff v. Pennoyer, 17 F. offered to vote for confirmation if, in or distorting or manipulating witness Cas. at 1280, was filed in federal court exchange, Williams would halt the testimony, prosecutors are exceedingly on September 10, 1874, before Judge grand jury. Williams agreed and uncomfortable when their conduct Matthew Deady. There is no question ordered the Oregon U.S. attorney to finds its way into the substantive that by the time of Neff v. Pennoyer, drop the matter. When he refused, aspects of the case. The prosecutor's Deady knew of Mitchell's lack of Williams fired him. Commenting on self-image as the good guy wearing scruples. Deady was not only a distin this incident, Deady called the removal the white hat may be punctured. The guished jurist and long-time resident of of the U.S. attorney "[a]n atrocious act prosecutor may do some rethinking, Oregon, he was also an acute observer for which W[illiams] & M[itchell] particularly if the media has now put of life and politics in Oregon. He kept deserve severe punishment." the prosecution's conduct under a extensive diaries in which he referred Neff apparently had prospered in microscope. to the events and prominent people of California. He had settled in San In Olmstead, Justice Brandeis urged the day. By the time Neff v. Pennoyer Joaquin with a wife and family as well that the courts should ensure that gov arose, Mitchell's prior activities in as servants, property, and livestock. He ernmental overreaching be firmly dealt Pennsylvania and his bigamous mar was prepared, however, to leave his with: riage had received wide public atten home in California and move himself, Decency, security, and liberty alike tion in Oregon, and Deady had closely his wife, and his daughter to Oregon demand that government officials followed the scandal. for a year to pursue his various legal shall be subjected to the same rules By June of 1873, Deady thought all actions. of conduct that are commands to the scandals would be the end of The opening salvo between Neff and the citizen. In a government of Mitchell. As he explained: "I think he Pennoyer was fired when Neff sued to laws, existence of the government [Mitchell] must go down. Seduction, evict Pennoyer, but the war did not end will be imperiled if it fails to desertion, theft, clandestine change of there. After Pennoyer lost the eviction observe the law scrupulously. Our name and absconding and bigamy are suit and costs were awarded against government is the potent, the too much for a man to carry in the him, he battled bitterly over the amount omnipresent teacher. For good or Senate, though he is making a of those costs. Neff was again the win for ill, it teaches the whole people desparate [sic] fight of it." Mitchell ner, and adding insult to injury, he pro by its example. Crime is conta nonetheless survived and even flour ceeded to sue Pennoyer again-this gious. If the government becomes ished. As time went by, Deady's diary time to recover money damages sus a lawbreaker, it breeds contempt entries displayed an increasing con tained as a result of Pennoyer's cutting for law; it invites every man to tempt for the man. After 1873, Deady down timber on the property. Pennoyer become a law unto himself; it generally referred to Mitchell by his counterclaimed to collect property invites anarchy. To declare that in born name, Hipple. On election day in taxes that he had paid from 1866 to the administration of the criminal 1876, Deady stated in disgust: "Have 1875. The counterclaim was dismissed, law the end justifies the means not voted for Congressman since the and Pennoyer's defense of the damage to declare that the government Republicans put Hipple in the platform action proved to be the closest he got to may commit crimes in order to in 1873 and don't think I will until they a victory: The jury found for Neff but secure the conviction of a private take him out . . ." awarded only nominal damages. criminal-would bring terrible Deady also had further reason to When the dust had settled, Pennoyer, retribution. Against that perni doubt Mitchell's integrity. In 1873, who the Supreme Court assumed was a cious doctrine this court should allegations of bribery by Mitchell and bona fide purchaser for value, was left resolutely set its face. others surfaced in connection with a holding the bag. Pennoyer had pur-
Litigation Winter 1992 56 Volume 18 Number 2 chased the land for "valuable consider of them offered small tracts of land to ation" and paid the taxes on it for a individual settlers. Aspiring lumber number of years, yet he found himself barons trying to assemble large tracts evicted, with nothing to show for his of land transported huge numbers of Creative money and subject to suit for trespass settlers to land offices to file dummy for entering the land he thought he applications. With a few well-placed owned. There is no evidence that bribes, the applications would be ap Defenses Pennoyer did or could ever recover the proved, and the settlers would then loss from anyone. transfer their deeds to Mitchell and oth (continued from page 25) Following the litigation, Neff disap ers in exchange for a modest payoff. reports, but you will hear about it at peared into obscurity; not so Pennoyer In July of 1905, while still serving in trial. There are two possible responses. and Mitchell. Pennoyer went on to be the U.S. Senate, Mitchell was convicted One is the classic cross-examination, governor of Oregon for two terms, fol and sentenced to six months in jail, a designed to demonstrate the impor lowed by one term as mayor of $1,000 fine, and complete disbarment tance of thoroughness and accuracy in Portland, but he remained bitter about from public office. In December of that report writing. In essence, you argue to his defeat in Pennoyer v. Neff. Ten same year, while his appeal was pend the jury that if it is not in the reports, it years after the Supreme Court decision, ing, Mitchell died, apparently from did not happen. The other approach is complications following a tooth extrac in his inaugural address as governor, to incorporate the new fact into the tion. The Daily Oregon Statesman Pennoyer decried that decision as a defense. Your expert can help do this. reported that the Senate adjourned usurpation of state power. He remained The new fact in my case was that my a vociferous critic of the Supreme client was totally calm after being strip Court, urging at one point that the searched. She was not crying; she did entire Court should be impeached, not appear frightened; she was not hys explaining: terical. As you might expect, my expert We have during this time been liv helped fit this fact into my theory. Of ing under a government not based course she was calm, my expert testi upon the Federal Constitution, but fied: She was finally safe. She had under one created by the plausible finally escaped her tormentor. She had sophistries of John Marshall .... found sanctuary. My closing argument Our constitutional government has began to take its final shape as my expert been supplanted by a judicial testified: oligarchy. Ladies and gentlemen of the jury, is Mitchell also remained in the public that consistent with a sophisticated eye. He was elected to the U.S. Senate heroin smuggler? They are calm at in 1872, lost his senate seat in 1879, but the border and then panic when was reelected in 1885. By modem stan arrested. My client's reaction was dards, Mitchell's reelection is quite just the opposite. extraordinary. Shortly before the 1885 election, Judge Deady, the lower court By using the new fact to my advan judge in Pennoyer v. Neff, came into tage, I had actually strengthened the possession of a set of love letters that defense case. Mitchell had written to Mitchell's sec without any official recogmt10n of My experience is that jurors are truly ond wife's younger sister during the Mitchell's death, though the chaplain undecided at the close of proof in syn five years he carried on an affair with "recalled the situation to mind in his drome cases. They go back and forth in her. Deady turned over the love letters prayer by referring pointedly to corrup their minds. It is difficult for them. The to a newspaper, the Oregonian, an tion and death and by praying that the defendant is an admitted heroin smug outspoken critic of Mitchell. The members of the Senate might be given gler, an admitted cocaine distributor, or Oregonian willingly published the let strength to bear each other's burdens." an admitted methamphetamine manu ters for all to read and enjoy. Despite Possibly moved by the chaplain's facturer, and the jurors are being asked the scandal, Mitchell was elected four prayer, the Senate later passed a resolu to set the defendant free. Under the cir days later, something that Deady called tion to pay Mitchell's funeral expenses. cumstances, you will be under more pres "a disgrace to the state and a reproach The fraudulent scheme is interesting sure than usual to sum up effectively. to humanity." not only because it was the last and Make your closing argument as dra Scandal was a way of life for among the most public of the scandals matic and powerful as possible. For Mitchell. In 1905, he, along with a that had become a way of life for example, by the time your summation number of other prominent Oregon Mitchell but also because the nature of is finished in a posttraumatic stress officials, was indicted in connection the scheme itself raises a nagging, case, the jurors should be in the fox with a massive land fraud scheme. The though unanswerable, question: Were holes, in the mud with your client, scheme was a simple one. After pass the initial transactions between Neff watching their best friends dying ing the Donation Act, Congress had and Mitchell part of an aborted fraudu around them. They should be able to passed the Homestead Act of 1862 and lent arrangement? One can only hear the bombs exploding overhead. the Timber and Stone Act of 1878. All wonder. l!:;l They should be uncomfortable and
Litigation Winter 1992 57 Volume 18 Number 2