Idaho Law Blog
A somewhat common saying in the legal profession is that a good lawyer knows the law, but a great lawyer knows the judge. Whether or not you agree with this saying, it can’t hurt to know what local judges are stressing to lawyers in the community. On November 16, 2016, at a Portnuef Inn of Court meeting, two judges in the Sixth Judicial District, Judge Scott Axline, a magistrate judge, and Judge Stephen S. Dunn, a district judge, discussed the legal principle of due process with local attorneys.
Judge Axline reminded those present that due process of law, the constitutional guarantee that prevents the government from impacting citizens in an abusive way, has its roots in the Magna Carta dating back to the year 1215; it did not come out of thin air. Today it is found in the Fifth and Fourteenth Amendments, and it is a common principle that permeates the legal system and makes it function. Based on his research, there are 36 statutes in Idaho that reference it, both in the criminal and civil context.
Judge Axline explained that due process has two categories: substantive and procedural due process. He gave examples of the importance of procedural due process, which includes giving notice to parties who have an interest in participating in legal proceedings. For example, in probate cases, Idaho law and principles of due process require that notice be given to all heirs. Failure to do so violates a person’s procedural due process rights.
When asked about local practice and the respect for due process, he responded that, on a whole, most attorneys respect this principle.
After Judge Axline spoke, Judge Dunn discussed some practical concerns of due process. He emphasized that in civil cases, each person is given two rights: 1) notice and 2) an opportunity to be heard. In a criminal case, parties have these and other rights: a right to an attorney, a right to confront witnesses, and many other rights that are not afforded in civil cases.
He further explained, however, that sometimes in criminal cases, procedural due process follows a timeline that is different than you might expect. It may seem, he explained, that the law violates due process when it allows people to be arrested without first having notice and an opportunity to be heard. But even though a person may be arrested, at that time, without these rights, they will shortly be provided—in addition to other rights. Persons who are arrested must be presented before a magistrate within 48 hours, where they get notice and an opportunity to be heard.
Judge Dunn then discussed some thoughts on substantive due process. He explained that Obergefell v. Hodges, the 2015 United States Supreme Court case that held same-sex couples have a fundamental right to marry, is great reading for understanding the current thoughts on substantive due process. The majority opinion written by Justice Anthony Kennedy stands in contrast to the dissenting opinion by Chief Justice John Roberts. Judge Dunn explained that Justice Roberts explored the history of the Due Process Clause. The opinion warns that substantive due process has been misused and expanded over time.
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