University of Richmond UR Scholarship Repository Law Faculty Publications School of Law Winter 1992 Sin, Scandal, and Substantive Due Process Wendy Collins Perdue University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Legal History Commons, and the Property Law and Real Estate Commons 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.