My research indicates that that the current legal system is characterized by notice, notice, and, uh, notice. When the IRS comes a-callin’, their first act is to send you a notice. So far as I can tell, virtually all civil causes of action (especially if initiated by the “government”) start with a notice.
Procedural due process includes: 1) Notice; and 2) Opportunity to be Heard. While true crimes (like murder or robbery) cannot be said to start with notice, I suspect that most penal offenses (which are of a civil nature with attached criminal penalties) probably start with notice.
As I’ve explained in other articles dealing with notice (see, https://adask.wordpress.com/category/notice/; especially, https://adask.wordpress.com/2008/07/27/notes-on-notice-and-procedural-due-process/#more-88 and https://adask.wordpress.com/2008/09/08/notes-on-notice-procedural-due-process-2/#more-129) it appears that a notice need not present or allege all facts or law relevant to a particular claim. The notice must merely provide sufficient facts or law to put the recipient “on inquiry”. I.e., the notice must merely be sufficient to cause the recipient to ask questions.
As an exaggeration, I might send you a notice that you owe me $100,000. I wouldn’t necessarily have to say why you owe, or when the debt was incurred. In essence, all I need to do is provide a “statement” (notice) that You Owe Me $100,000. (UOME $100,000)
If I send that “UOME $100,000” notice, and you don’t respond properly, my “UOME” notice may soon be converted into an implied “IOU $100,000” from you.
Presumably, if I send you a notice that you owe me $100,000, that might be enough to prompt you to ask “Whut th’ hell you talkin’ ‘bout, Adask?” If you did thereby exercise your right of inquiry, I would have a correlative duty to answer your questions.
More, so far as I can see, my notice to you would not be deemed “sufficient” until I had answered all of your questions. If your questions were particularly astute, I might not want to answer all of your questions. If your questions were seemingly endless, I might even give up trying to answer and thereby abandon my claim.
But if you responded to my original notice with silence, it would be presumed that you had no questions and that therefore the notice I sent was sufficient. Under this circumstance, by failing to ask questions, it may be construed that you have converted my “UOME $100,000” notice into your “IOU $100,000” confession. That description is an exaggeration and an oversimplification. But, so far as I can see, it’s not so far removed from the truth.
Similarly, if you responded to my original notice with statements (“Adask, you’re CRAZY! I don’ owe you one damn dime!”), it may also be presumed that you have no questions and therefore the notice I sent was “sufficient”. Again, by failing to respond to my “UOME $100,000” notice with questions, you’ve opened the door for the court to construe your response as your “IOU $100,000” confession.
Again, that description is not the truth of the matter, but it’s a metaphor that helps illustrate some of my current beliefs concerning notice and the correlative right of inquiry. So far as I can see, if you receive a notice and go silent, you’re screwed. If you receive a notice and make statements, you’re screwed. If you receive a notice and ask questions, you might save yourself a lot of costs and/or trouble.
• Under procedural due process, once you have sufficient notice, you can proceed to the “opportunity to be heard” (an administrative hearing) where defendants (those who don’t ask questions) are found guilty about 98% of the time. As a defendant, you don’t want the “opportunity to be heard” because it’s typically an “opportunity to be sentenced” (or at least found guilty).
It appears that you can avoid the “opportunity to be heard/sentenced” by asking astute, relevant and seemingly endless questions in response to the plaintiff’s notice and subsequent answers.
My research indicates that notice involves two fundamental principles: 1) the government’s notice to you creates your “right of inquiry” (posing questions to government or whoever sent the notice); 2) your right of inquiry presupposes the government’s duty to answer all of your questions.
These principles may not seem particularly important, but they strike me as profound. Before I dare to try to collect $100,000 from you based on a mere notice, I must be prepared to answer all of your questions. Most people are ignorant and therefore, in response to my notice, they will go silent or make statements—in which case I’m golden. I doubt that one man in 1,000 has brains enough to respond to my notice with questions that are astute, insightful and dangerous to me. Of course, if you’re that one man, and I can’t or won’t answer your questions, I’ll have to drop my lawsuit and pray that you don’t file a criminal complaint against me under 18 USC 1001 (which I’ll discuss below).
• There was a time when common law pleading was the dominant form of pleading through the United States. Common law pleading was replaced by code pleading. And code pleading was later replaced by “notice pleading”.
Wikipedia (http://en.wikipedia.org/wiki/Pleading_(United_States)) describes “notice pleading” as follows:
“Notice pleading is the dominant form of pleading used in the United States today. In 1938, the Federal Rules of Civil Procedure [“FRCP”] were adopted. One goal of these rules was to relax the strict rules of code pleading.
“The focus of the cause of action was shifted to discovery (another goal of the FRCP). Under the Federal Rules, a plaintiff’s complaint merely needs to contain a short and plain statement of their cause of action. All additional information in regards to the cause of action are handled through discovery. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.”
Note the persistent references to “discovery”. What is the essence of “discovery”?
What is the “short and plain statement of their cause of action”? Sound very much like a notice, to me. And when they say “short and plain,” they necessarily mean “incomplete”. The plaintiff starts with an “incomplete” notice to the alleged defendant. Such incomplete notice implies that the defendant may be able to ask questions concerning the lawsuit that’s being threatened.
But the difference between the notice pleading we see in the courts and the strategy I’m exploring concerning pre-trial notices is this:
By filing a lawsuit, I entitle both myself and my adversary to engage in “discovery”. I.e., we can both ask questions within certain court-mandated limits.
But if an entity (say, the IRS) sends me a notice without also having filed suit, then it appears to have created my “right of inquiry” without creating any similar “right of inquiry” for itself. As the notice recipient, I get to ask questions; the IRS does not. Therefore, if I have brains enough to respond to the IRS notice with questions, the IRS has to answer my questions—or deprive me of procedural due process if they refuse. If my questions are sharp enough, the IRS may be forced to make admissions that they don’t dare make in public. If they deprive me of procedural due process by refusing to answer my questions, they will probably have lost their standing to file a subsequent lawsuit.
Thus, by quickly responding to my adversary’s notice with my own questions, I might place the IRS between the rock and the hard place. If they answer my questions, they might make admissions that they don’t dare make in public. If they don’t answer my questions, they may deprive me of “sufficient notice” (one of the two elements of “procedural due process”) and thereby surrender their standing to later sue me.
Unfortunately (for the IRS and other governmental entities), it costs much time and money to file a lawsuit that entitles both sides to “discovery”. Sending a mere administrative notice (without having filed suit) is much quicker, easier and cheaper.
Fortunately (for the IRS and other governmental entities), very few alleged “taxpayers” even suspect that an IRS notice may create their “right of inquiry”. Therefore, the IRS can send out millions of “UOME” notices which the alleged “taxpayers will ignore (“go silent”) or respond to with statements, imply that they’ve received “sufficient notice,” and thereby convert the IRS’s “UOME” notice into a taxpayer’s “IOU” confession.
Next stop on the procedure due process railroad? The “opportunity to be heard”—an administrative hearing where the alleged taxpayer will be found guilty of owing whatever the IRS claimed about 98% of the time.
However, if the alleged taxpayer exercises his right to ask questions in response to the IRS notice, he might avoid the “opportunity to be heard/sentenced”.
• Wikipedia’s article on “notice pleading” continues:
“The FRCP does not entirely eliminate code pleading. The FRCP still requires that certain pleadings state facts with particularity. An example is Federal Rule 9(b) which states that ‘in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.’ This is considered a special pleading rule. The purpose of this rule is to help prevent a person from abusing the judicial process to defame another without spelling out the specific circumstances surrounding the alleged fraud. Additional special pleading rules are set out in Rule 9 of the Federal Rules of Civil Procedure.
“The leniency of the modern notice pleading system sometimes resulted in poorly-drafted complaints with vaguely phrased, incoherent and conclusory allegations.”
I suspect that “poorly-drafted” and “vaguely phrased” complaints are a natural consequence of the requirement that notice be only “sufficient” to put the recipient “on inquiry”. If I allege that You Owe Me $100,000 under notice pleading, and I don’t have to present all relevant facts and law but can instead skate by merely telling you enough put you “on inquiry,” no one should be surprised if my original notice/complaint is “poorly-drafted” or “vague”.
After all, under modern law, it appears that it is the nature of modern notices to be “vague” in the sense that most do not include all relevant facts or all relevant law.
“The Supreme Court eventually responded in 2007 with a decision in Bell Atlantic Corp. v. Twombly, and again in 2009 with a decision in Ashcroft v. Iqbal, which together imposed new standards for specificity and “plausibility” in pleadings.
“Iqbal reaffirmed and broadened Twombly’s ruling that a court need not accept a ‘legal conclusion couched as a factual allegation’ or ‘naked assertions devoid of further factual enhancement.’ In Twombly and Iqbal, the U.S. Supreme Court sought to clarify the deceptively simple mandate of Federal Rules of Civil Procedure 8(a)(2), which states that a ‘pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.’
“The Court interpreted Rule 8(a)(2) in Twombly to mean that a complaint must contain sufficient factual allegations to allow a district court to find that the claim is plausible. The Twombly court criticized the modern notice pleading standard derived from the landmark 1957 Conley v. Gibson decision, which had ruled that a complaint should not be dismissed at the pleading stage, ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”
I suspect that the original “complaint” is essentially a notice. Since A.D. 1957 (Conley v Gibson), the complaint/notice requirements have been extraordinarily “lenient”. Again, if I sent you a notice that merely declared, “UOMe $100,000,” that notice might still be presumed to be sufficient.
Now, however, the courts are starting to tighten up on notice pleadings and the former leniency is giving way to a requirement for particularity and specifics. That’s bad for all plaintiffs—including the government. But it’s good for all defendants—at least for those who understand their “right of inquiry”. The “right of inquiry” might open the door to requiring an adversarial governmental agency to supply the “particularity and specifics” of the allegations in their initial notices.
“It is still not clear whether Iqbal will reduce federal court caseloads by allowing frivolous or weak lawsuits to be thrown out at the pleading stage, prior to the commencement of potentially expensive discovery. The Twombly and Iqbal decisions have the potential of denying plaintiffs with meritorious claims their day in court by raising insurmountable hurdles at the pleading stage.”
Wikipedia’s description implies that plaintiff’s have an obligation to provide “sufficient notice” to the courts, themselves. If the plaintiff (especially if he’s a pro se or someone suing the government) fails to provide sufficient notice of relevant facts and law to the judge, the judge can dismiss the case at the “pleading stage”—before the plaintiff can enter the “discovery stage” wherein he might gain more facts to support his allegations. This change implies that the judge in any federal case will have discretion to use, or not use, the requirement that plaintiffs supply sufficient notice to the judge to arbitrarily allow or prevent particular cases from commencement. I.e., if the IRS files a suit with little or not factual support, the judge might allow the case to nevertheless proceed. If you or I file a suit against the IRS, the judge might prevent our case from proceeding.
I don’t know, but I suspect that the “pleading stage” may be that period of time between when the plaintiff sends his first notice/complaint to the defendant, and whenever the court takes real jurisdiction over the case. If I’m right, it’s during this “pleading stage” that the defendant may still have the “right of inquiry” that allows him to pose an endless and relatively inexpensive series of questions to the plaintiff based on the plaintiff’s first petition/notice.
Later, when the court takes control and the process enters into the “potentially expensive discovery,” more questions can be asked, but these questions are limited in number and supervised by the court. Discovery is good, but it can be ruinously expensive. But if you can pose your questions in response to an initial complaint/notice before the court-ordered discovery begins, you might be able to stop the lawsuit before it gets to court—especially, if you can properly apply 18 USC 1001.
• 18 USC 1001 “Statements of entries generally” (see, http://codes.lp.findlaw.com/uscode/18/I/47/1001), declares:
“(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully –
“(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
“(2) makes any materially false, fictitious, or fraudulent statement or representation; or
“(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
“shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
“(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
“(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to –
(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.”
Note the use of the word “conceals” in section (a)1 of 18 USC 1001. It seems to me that if 1) the IRS sends me a notice creating my right of inquiry; 2) I exercise my right of inquiry by asking questions in response to the “incomplete” IRS notice; and 3) the IRS refuses to answer my questions; then, 4) the IRS and/or whoever refused to answer my questions may have “concealed” a “material fact” and thereby become liable under 18 USC 1001 for a substantial fine or imprisonment.
If the gov-co or its agents continued to “conceal” “material facts over a period of more than one year, they might create grounds to sue them civilly (for money) under the RICO laws.
• Insofar as 18 USC 1001 refers to “fraudulent statement[s],” here are excerpt from a case that deals with and defines fraud and the “intangible right” to “honest services of government”:
McNALLY v. UNITED STATES, 483 U.S. 350, 372 (1987), “Fraud in its elementary common law sense of deceit—and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985)—Includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations.”
At 358, “This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973).”
It appears to me that those governmental agents or employees who send notices have a fiduciary obligation to “perform their duties honestly”. If so, when they send a notice and I respond with relevant questions, I presume they have a fiduciary obligation answer my questions fully and honestly. If they fail to do so, they may be guilty of violations under 18 USC 1001.