Appear and you shall not be heard

"It would be like saying to a party, Appear and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard." Mr. Justice Field

Lubomyr Prytulak
UKAR the Ukrainian Archive at www.ukar.org

11 April 2003

James R. Dunn
Los Angeles Superior Court
111 North Hill Street
Los Angeles, CA
USA     90012

Re: Rambam v Prytulak   BC271433   James R. Dunn

James R. Dunn:

From the transcript of the Rambam v Prytulak proceeding of 03-Oct-2002, Lubomyr Prytulak learns that Steven Rambam's testimony on that date was supported by a book of exhibits numbered 1 through 13.  The information in this Rambam exhibit book is necessary to Prytulak's appeal, and Prytulak requests to purchase a copy.

Lubomyr Prytulak reminds the Court also that he has yet to be served with a copy of the Rambam v Prytulak judgment of 22 days ago, dated 20-Mar-2003, which absence stands in the way of his perfecting his appeal.

Finally, Lubomyr Prytulak protests learning of a string of recent Rambam motions only after the Court has disposed of them, and only to the extent of the uninformative online announcement "Motion for an Order Granted," and protests also the holding of hearings without their dates being announced beforehand, and this not only by Prytulak being denied service of copies of the motions to be considered at those hearings, but even by the online Case Summary under Future Hearings remaining locked at "None" while hearings do continue.

This total exclusion of Lubomyr Prytulak from participation in the Rambam v Prytulak proceedings following on the heels of Court spoliation of nine out of ten documents supportive of the defense calls to mind the opposition to such practice penned in Hovey v Elliott more than a century ago and cited below, and which must be read with the understanding that the deprivation of rights that elicits the Hovey v Elliott indignation is less egregious than that inflicted upon Lubomyr Prytulak in the Rambam v Prytulak proceedings because the defendants contemplated in Hovey (1) fall within the jurisdiction of the court whereas Prytulak does not; (2) have been in violation of some order of the court, whereas Prytulak has not; and (3) are informed that their submissions have been stricken from the record and of the reason why, whereas Prytulak can extract no such acknowledgement or information from the Los Angeles Superior Court his submissions, and sometimes his payments, simply vanish with no answer being given to questions concerning their disappearance or to questions concerning their availability as part of the trial record upon appeal.

[A] more fundamental question yet remains to be determined, that is, whether a court possessing plenary power to punish for contempt, unlimited by statute, has the right to summon a defendant to answer, and then after obtaining jurisdiction by the summons, refuse to allow the party summoned to answer or strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the theory that he has been guilty of a contempt of court.  The mere statement of this proposition would seem, in reason and conscience, to render imperative a negative answer.  The fundamental conception of a court of justice is condemnation only after hearing.  To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.

In McVeigh v. United States, 78 U.S. 11 Wall. 259 [20:80], the court, through Mr. Justice Swayne, said (p. 267 [81]):

"In our judgment, the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files.  As we are unanimous in this conclusion, our opinion will be confined to that subject.  The order in effect denied the respondent a hearing.  It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum.  ...  The liability and the right are inseparable.  A different result would be a blot upon our jurisprudence and civilization.  We cannot hesitate or doubt on the subject.  It would be contrary to the first principles of the social compact and of the right administration of justice."

And quoting with approval this language, in Windsor v. McVeigh, 93 U.S. 277 [23:916], the court, speaking through Mr. Justice Field, again said (pp. 277, 278 [915, 916]):

"The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence.  Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable.  This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations.  A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.  That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted.  Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter.  But notice is only for the purpose of affording the party an opportunity of being heard upon the claim of the charges made; it is a summons to him to appear and speak, if he has anything to say why the judgment sought should not be rendered.  A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether.  It would be like saying to a party, Appear and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard.  In the present case, the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered.  It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict clothed in the form of a judicial sentence."

This language but expresses the most elementary conception of the judicial function.  At common law no man was condemned without being afforded opportunity to be heard.  [pp. 219-220]
Can it be doubted that due process of law signifies a right to be heard in one's defense?  If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution?  If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution.  If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it.  If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.

In Galpin v. Page, 85 U.S. 18 Wall. 350 [21:959], the court said (p. 368 [963]):

"It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.  Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered."  [p. 221]
The necessary effect of the judgment of the supreme court of the District of Columbia was to decree that a portion of the award made in favor of the defendant, in other words his property, belonged to the complainants in the cause.  The decree therefore awarded the property of the defendant to the complainants upon the hypothesis of fact that by contract the defendant had transferred the right in or to this property to the complainant.  If the court had power to do this, by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of law?  If the power to violate the fundamental consitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to proceedings in contempt, why will they not also apply to proceedings against the liberty of the subject?  Why should not a court in a criminal proceeding deny to the accused all right to be heard on the theory that he is in contempt, and sentence him to the full penalty of the law?  No distinction between the two cases can be pointed out.  The one would be as flagrant a violation of the rights of the citizen as the other, the one as pointedly as the other would convert the judicial department of the government into an engine of oppression, and would make it destroy great constitutional safeguards.  [p. 221]

Hovey v Elliott, 167 US 409, 17 SupCt 841 (1897), from Book 42, Lawyer's Edition.
Quoted at length and with approval in
Foley v Foley, 52 P 122 at 124 (California 1898)

Lubomyr Prytulak

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