Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P45 ppsx

a state statute forbidding married adults from using BIRTH CONTROL on the ground that the law violated the sanctity of the marital relationship. In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a PENUMBRA of privacy, which serves to insulate certain behavior from governmental coercion or intrusion. According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone or breathing space for those freedoms that are constitution- ally enumerated. Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that banned the distribu- tion of contraceptives to unmarried persons. In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the deci- sion of whether to bear or beget a child. Eisenstadt foreshadowed the decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an ABORTION during the first trimester of pregnancy without state interfer- ence. Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman’s right to terminate her pregnancy ( WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]). The liberty interest protected by the Due Process Clause places other substantive limita- tions on legislation regulating intimate dec i- sions. For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 [1925]). Parents may not be compelled by the government to educate their children at public schools without violat- ing principles of substantive due process. The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordi- nances that limit occupation of particular dwellings to immediate relatives (Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]). During the 1990s, the Supreme Court was asked to recognize a general right to die, under the doctrine of substantive due process. Al- though the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of compe- tent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state. Once it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition. The U.S. Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but termi- nally ill, patients to hasten their deaths by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [1996]). In WASHINGTON V. GLUCKSBERG, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right to ASSISTED SUICIDE. The liberty interest recognized by the doctrine of substantive due proces s permits individuals to lead their lives free from unreasonable and arbitrary governmental impo- sitions. Nevertheless, this liberty interest does not require the absence of all governmental restraint. Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while non-economic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable. The U.S. Supreme Court continues to revisit the concept of substantive due process. In 2003, the Supreme Court was asked to review the constitutionality of a Texas statute criminalizing homosexual SODOMY. The statute made it a misdemeanor for a person to engage in “deviate GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 SUBSTANTIVE DUE PROCESS sexual intercou rse” with another individual of the same sex, but did not prohibit such conduct when undertaken with a person of the opposite sex. The DEFENDANT, an adult male, was arrested for violating the statute by engaging in consen- sual homosexual relations in the privacy of his home. The Court found that Texas Penal Code section 21.06 violated substantive due process by creating this double standard governing the legality of oral and anal sex between heterosex- ual and homosexual partners. LAWRENCE V. TEXAS, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Justice ANTHONY KENNEDY wrote the 6–3 decision. Overruling a 17-year-old precedent, Ken- nedy said that history and tradition are the starting point, but not in all cases the ending point, of substantive due process inquiry. In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), which rejected a claim advocating recognition for an almost identical substantive due process liberty interest, Kennedy maintained that the Court had failed to appreciate the nature and scope of the liberty interest at stake. “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward [in that case], just as it would demean a married couple were it to be said marriage is simply about the right to have sexual inter- course,” Justice Kennedy explained. Although “[t]he laws involved in Bowers and here are statutes that purport to do no more than prohibit a particular sexual act. [t]heir pen- alties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home,” the Court continued. The statutes in question “seek to control a personal relationship that, whether entitled to formal recognition in the law or not, is within the liberty of persons to choose without being punished as criminals.” The deficiencies in Bowers became even more apparent in the years following its announcement, Justice Kennedy obs erved. The 25 states with laws prohibiting sodomy in Bowers had been reduced to 13 by 2003, and four of those 13 states applied their laws only against homosexual conduct. But even in the states where homosexual sodomy was pro- scribed, Kennedy emphasized, there was a pattern of non-enforcement with respect to consenting adults acting in private. Thus, the Court concluded that homosexuals enjoy a constitutionally protected liberty under the Due Process Clause, and that liberty gives them a right to engage in private consensual sexual activity without intervention of government. In the years immediately following the Lawrence decision, the Supreme Court did not expand the substantive due process doctrine. However, lower courts commonly hear argu- ments about substantive due process claims. For instance, in Dias v. City & County of Denver, 567 F.3d 1169 (10th Cir. 2009), the U.S. Court of Appeals for the Tenth Circuit reviewed a challenge to a Denver, Colorado, city ordinance banning the ownership and possession of pit bulls. A group of residents brought suit, alleging that the ordinance violated their substantive due process rights. The court agreed that the plaintiffs raised a CAUSE OF ACTION because the court concluded that the ordinance did not appear to be rationally related to the govern- ment’s interest in banning pit bulls. FURTHER READINGS Bridegam, Martha. 2003. The Right to Privacy. New York: Chelsea House. Garrow, David J. 1998. Liberty and Sexuality: The Right to Privacy and the Making of Roe vs. Wade. Berkeley: Univ. of California Press. Keynes, Edward. 1996. Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process. University Park: Pennsylvania State Univ. Press. Krotoszynski, Ronald J., Jr. 2002. “Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause.” North Carolina Law Review 80 (March). Phillips, Michael J. 2001. The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Westport, Conn.: Praeger. Riggs, Robert E. 1990. “Substantive Due Process in 1791.” Wisconsin Law Review (July-August). Rubin, Peter J. 2003. “Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights.” Columbia Law Review 103 (May). Sunstein, Cass R. 2009. A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before. Princeton, N.J.: Princeton Univ. Press. Weaver, Russell L. 2009. Inside Constitutional Law: What Matters and Why. New York: Aspen Publishers. CROSS REFERENCES Constitutional Law; Death and Dying; Due Process; Incorporat ion Doctrine; Labor Law; Quinlan, In re; Rational Basis Test; Strict Scrutiny; Unenumerated Rights. SUBSTANTIVE LAW The part of the law that creates, defines, and regulates rights, including, for example, the law of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBSTANTIVE LAW 429 contracts, torts, wills, and real property; the essential substance of rights under law. Substantive law and PROCEDURAL LAW (also called ADJECTIVE LAW) are the two main categories within the law. Substantive law refers to the body of rules that determine the rights and obligations of individuals and collective bodies. Procedural law is the body of legal rules that govern the process for determining the rights of parties. Substantive law refers to all categories of public and PRIVATE LAW, including the law of contracts, real property, torts, and CRIMINAL LAW. For example, criminal law defines certain behavior as illegal and lists the elements the government must prove to convict a person of a crime. In contrast, the rights of an accused person that are guaranteed by the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution are part of a body of criminal procedural law. U.S. substantive law comes from the COMMON LAW and from legislative statutes. Until the twentieth century, most substantive law was derived from principles found in judicial deci- sions. The common law tradition built upon prior decisions and applied legal precedents to cases with similar fact situations. This tradition was essentially conservative, as the substance of law in a particular area changed little over time. Substantive law has increased in volume and changed rapidly in the twentieth century as Congress and state legislatures have enacted statutes that displace many common law principles. In addition, the National Conference of Commissioners on Uniform State Laws, the AMERICAN BAR ASSOCIATION, and the American Law Institute have proposed numerous model codes and laws for states to adopt. For example, the Commissioners on Uniform State Laws and the American Law Institute drafted the UNIFORM COMMERCIAL CODE (UCC), which governs com- mercial transactions. The UCC has been adopted in whole or substantially by all states, replacing the common law and divergent state laws as the authoritative source of substantive COMMERCIAL LAW. Other examples of widely used model codes include the American Bar Associa- tion’s Model Code of PROFESSIONAL RESPONSIBILITY for lawyers and the American Law Institute’s MODEL PENAL CODE. CROSS REFERENCES Model Acts; Uniform Acts. SUBSTITUTED SERVICE Service of process upon a defendant in any manner, authorized by statute or rule, other than PERSONAL SERVICE within the jurisdiction; as by publication, by mailing a copy to his or her last known address, or by personal service in another state. SUCCESSION The transfer of title to property under the law of DESCENT AND DISTRIBUTION. The transfer of legal or official powers from an individual who formerly held them to another who undertakes current responsibilities to execute those powers. SUCCESSION OF STATES Succession occurs when one state ceases to exist or loses control over part of its territory, and another state comes into existence or assumes control over the territory lost by the first state. One central concern in this instance is whether the international obligations of the former state are taken over by the succeeding state. Changes in the form of government of one state, such as the replacement of a monarchy by a democratic form of government, do not modify or termi- nate the obligations incurred by the previous government. When the state ceases to exist, however, the treaties it concluded generally are terminated, and those of the successor state apply to the territory. These include political treaties like alliances, which depend on the existence of the state that concluded them. But certain obliga- tions, such as agreements concerning bound- aries or other matters of local significance, carry over to the successor state. More difficult to determine is the continuing legality of treaties granting concessions or contract rights. Schol- arly opinion has diverged on this aspect of succession, and state practice has likewise divided. Consequently, each case must be studied on its merits to determine whether the rights and duties under the contract or conces- sion are such that the successor state is bound by the obligations of the previous state. The Vienna Convention for the Succession of States, adopted in 1978, adopts the “clean slate” theory, under which a new state starts afresh, with neither rights nor obligations under the agreements of its predecessor state, unless the new state assumes some or all of the agreements of the prior state, either expressly or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 SUBSTITUTED SERVICE by implication. The same rule applies to both former colonies and to states arising from secession or other separation: the new state is not bound by treaties of the prior state unless it and the other contracting party accept the treaty expressly or by implication. The United States is a signatory to the Vienna Convention, although it was never ratified by the U.S. SENATE.Itis currently followed by the U.S. STATE DEPARTMENT. SUE To initiate a lawsuit or continue a legal proceeding for the recovery of a right; to prosecute, assert a legal claim, or bring action against a particular party. SUFFER To admit, allow, or permit. The term suffer is used to convey the idea of ACQUIESCENCE, passivity, indifference, or absten- tion from preventive action, as opposed to the taking of an affirmative step. For example, a person can suffer a default on his or her mortgag e by not paying the monthly bill. SUFFRAGE The right to vote at public elections. SUI GENERIS [Latin, Of its own kind or class.] That which is the only one of its kind. The concept has been applied across different types of law, such as intellectual property rights. The Semiconductor Chip Protection Act of 1984, 17 U.S.C. §§ 901- 915, is one example of this, in that the law does apply to copyrig ht or patenting semiconductor chips, but instead comprise a unique protection for this one particular item, hence it is sui generis. SUI JURIS Possessing full social and CIVIL RIGHTS; not under any legal disability, or the power of another, or guardianship. Having the capacity to manage one’s own affairs; not under legal disability to act for one’s self. A child or someone of unsound mind would not be classified as sui juris, as they do not have legal competence. SUICIDE Suicide is the deliberate taking of one’s own life. Under COMMON LAW, suicide, or the inten- tional taking of one’s own life, was a felony that was punished by FORFEITURE of all the goods and chattels of the offender. Under modern U.S. law, suicide is no longer a crime. Some states, however, classify attempted suicide as a criminal act, but prosecutions are rare, especially when the offender is terminally ill. Instead, some jurisdictions require a person who attempts suicide to undergo temporary hospitalization and psychological observation. A person who causes the death of an innocent bystander or would-be rescuer while in the process of attempting suicide may be guilty of MURDER or MANSLAUGHTER. Assisted Suicide More problematic is the situation in which someone helps another to commit suicide. Aiding or abetting a suicide or an attempted suicide is a crime in all states, but prosecutions are rare. Since the 1980s, the question of whether physician-assisted suicide should be permitted for persons with terminal illnesses has been the subject of much debate, but as of 2009 this issue had not been resolved. Suicide Rates in the United States, by Select Population Characteristics, in 2006 2016 12 Rate per 100,000 population 840 Young (15–24 years old) 9.9 Elderly (65–74 years old) 12.6 11.1 Male 18.0 Female 4.5 Total U.S. population Black 5.1 White 12.1 SOURCE: Centers for Disease Control and Prevention, National Vital Statistics System, National Vital Statistics Reports, Deaths: Final Data for 2006, April 2009. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SUICIDE 431 The debate over physician-assisted suicide concerns persons with debilitating and painful terminal illnesses. Under current laws a doctor who assists a person’s suicide could be charged with aiding and abetting suicide. Opponents of decriminalizing ASSISTED SUICIDE argue that decriminalization would lead eventually to doctors being allowed to assist persons who are not terminally ill to commit suicide. The debate on physician-assisted suicide intensified after 1990 when JACK KEVORKIAN,a retired Michigan pathologi st, attended many suicides. Kevorkian admitted to obtaining carbon monoxide and instructing persons who suffered from terminal or degenerative diseases on how to administer the gas so they would die. Despite the efforts of Michigan legislators and prosecutors to convict Kevorkian of murder, the pathologist, who was dubbed “Doctor Death,” successfully fought the charges. Three murder charges were dismissed by Michigan courts, and in 1994 Kevorkian was acquitted of violating Michigan’s assisted suicide law (Mich. Comp. Laws § 752.1021 et seq.). Despite Kevorkian’s acquittals other assisted suicide advocates be- lieve his methods have actually hurt the cause. In 1997 the U.S. Supreme Court held that neither the due process clause (Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772) nor the EQUAL PROTECTION clause (Vacco v. Quill, 521 U.S. 743, 117 S. Ct. 2293, 138 L. Ed. 2d 834) of the FOURTEENTH AMENDMENT includes a right to assisted suicide. After four acquittals, Kevorkian was con- victed in March 1999 of second-degree murder and delivery of a controlled substance by a jury in Pontiac, Michigan. Kevorkian administered a lethal injection in September 1998 to Thomas Youk, a 52-year-old man who suffered from amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease), a fatal neurological disorder that slowly disables its victims. Kevorkian performed the procedure on the CBS television program 60 Minutes amid great controversy. At the time of his trial, Kevorkian repre- sented himself, insi sting that only he could explain to the jury that he did not intend to kill Youk but to end his suffering. The jury nevertheless reached a guilty verdict. Although he could have been sentenced to life in prison, he was sentenced to 10 to 25 years in prison. He was released from prison in 2007. Kevorkian was not entirely alone in his crusade to legalize assisted suicide. In 1994, Oregon voters passed the Oregon Death with Dignity Act (DWDA), which allows physicians to prescribe lethal medication to Oregon residents who request it. The statute requires that the patient must be 18 years or older, must be able to make and communicate healthcare decisions, and must have been diagnosed with a terminal illness that likely will result in death within six months. While physicians may make the prescription, patients must self-administer it, since the DWDA specifically prohibits “lethal injection, mercy killing, or active euthanasia.” Oregon is, as of 2009, the only jurisdiction in the world that has legalized physician-assisted suicide. The Oregon legislature enacted the DWDA after residents voted in favor of the law twice, 51 percent in favor in 1994, then 60 percent in 1997. The law originally went into effect in 1994 but immediately was suspended by court injunctions pending legal challenges. After the Supreme Court rendered its decisions in Glucksberg and Vacco, the Ninth Circuit Court of Appeals lifted the INJUNCTION. The Oregon law went into effect on October 27, 1997. Between 1998 and 2001, between 70 and 96 patients—the exact numbers are disputed— committed suicide under the act. In November 2001, U.S. attorney general JOHN ASHCROFT issued a directive stating that physicians who prescribe lethal doses of drugs to end the lives of terminally ill patients would be subject to criminal charges and have their medical licenses revoked or suspended. Ashcroft issued this directive pursuant to the Controlled Substances Act and reversed the position previously taken by former attorney general JANET RENO,who determined that the Oregon statute was outside the scope of the Controlled Substances Act. Members of Congress, including Senator Orrin Hatch (R-Utah) and Representative Henry Hyde (R-Ill.), also unsuccessfully sought to pass federal legislation that would have revoked the registration of Oregon physicians who partici- pated in assisted suicide efforts. In response to Ashcroft’s order, the state of Oregon brought suit against the attorney general, seeking a permanent injunction to prevent him and the U.S. JUSTICE DEPARTMENT from enforcing the directive. In April 2002, U.S. District Court Judge Robert E. Jones issued the injunction and also criticized Ashcroft for his handling of the directive . According to Jones, the Controlled Substances Act was not intended GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 SUICIDE to override a state’s decision concerning what constitutes legitimate medical practice, at least in the absence of federal law prohibiting such a practice. The judge also found that Congress never intended, through the Controlled Sub- stances Act or other federal law, to grant blanket authority to the attorney general or the Drug Enforcement Agency to define what constitutes the legitimate practice of medicine. The gov- ernment appealed this decision but ultimately the Supreme Court upheld it in (Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). The DWDA has strict requirements that are designed to prevent abuse of the act. Patients must make two verbal requests for lethal medication separated by at least 15 days, plus a written request. Two physicians must inde- pendently confirm that the patient has a terminal illness likely to result in death within six months and that the patient is capable to make and communicate healthcare decisions. If either physician believes the patient suffers from depression or any other psychiatric disorder, he or she must refer the patient for counseling. The prescribing physician must request, but not require, the patient to inform his or her NEXT OF KIN of the suicide decision. The prescribing physician also must inform the patient of alternatives to suicide, including hospice care and pain control, and give the patien t the opportunity to change his or her mind after the 15 day waiting period. The strict DWDA requirements have not silenced its critics. Opponents in the medical community, including Physicians for Compas- sionate Care, believe that physician-assisted suicide is contrary to the profession’spur- pose—to promote health. Religious opponents, including the Roman Catholic Church, Mor- mons, and Christian fundamentalists, believe that suicide of any kind devalues life. Not Dead Yet, an organization of disabled persons, believes that states should instead enact legisla- tion to improve access to health and hospice care and the overall quality of life, for terminally ill patients. Many opponents are concerned that poor or uneducated patients will be pressured by family members or the healthcare insurance industry to choose death over life with its medically expensive consequences. To the supporters of physician-assisted suicide, the issue is a matter of personal autonomy and control. The Hemlock Society, an organization that supports physician-assisted suicide, claims that terminally ill patients must be allowed to end their lives volu ntarily rather than suffer through the painful and disabling effects of a terminal illness. In 2008, a Montana trial court ruled that a terminally ill patient had the constitutional right to receive aid in dying. The state appealed the decision to the state suprme court. On Decem- ber 31, 2009, the supreme court ruled that state law protects doctors from prosecution for helping terminally ill people die. In the 4–3 decision, the court did not rule on whether physician-assisted suicide is a right guaranteed under the Montana Constitution. Teen Suicide and Cyber Bullying The topic of teen suicide took center stage in 2006, when 13-year-old Megan Meier hanged herself after being the target of ongoing cyber bullying. The online harassment (cyber bully- ing) primarily took place through the social networking Website MySpace and was sent to Meier by Lori Drew, the mother of Meier’s former friend, who was posing as a teen boy. A federal district court jury found Drew guilty of three misdemeanors for violating the Computer FRAUD and Abuse Act. However, the trial judge overturned the verdict and acquitted Drew of all charges. The case against Drew was based on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. The judge concluded that the argument had no merit, as it criminalized what would have been a breach of contract. In the wake of Meier’s suicide, and the suicide of other teens attributed to cyber bullying, several states have adopted legislation specifically directed at prohibiting cyber bully- ing. The se states include Arkansas, Delaware, Idaho, Iowa, Minnesota, New Jersey, Oregon, South Carolina and Washington. Many school districts have also adopted policies to address cyber bullying. FURTHER READINGS Birnbacher, Dieter, and Edgar Dahl. 2008. Giving Death a Helping Hand: Physician-Assisted Suicide and Public Policy. New York: Springer. Hinduja, Sameer, and Justin W. Patchin. 2008. Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying. Thousand Oaks, Calif.: Corwin Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUICIDE 433 Kopelman, L. M., and K. A. de Ville. 2001. Physician-Assisted Suicide: What Are the Issues? New York: Springer. “State Action on Cyber-Bullying.” 2008. USA Today (February 6). www.usatoday.com Available online at http://www.usatoday.com/news/nation/2008-02-06-cy- ber-bullying-list_N.htm (accessed October 7, 2009). CROSS REFERENCES Death and Dying; Euthanasia; Patients’ Rights; Physicians and Surgeons. SUIT See LAWSUIT. SUMMARY Immediate; peremptory; off-hand; without a jury; provisional; statutory. In a legal proceeding, it means without the formality of a full proceeding, but rather short and concise. A SUMMARY JUDGMENT is a final decision in a CIVIL ACTION that circumvents the need for trial and presentation of evidence because there is no genuine issue or dispute of material fact in the lawsuit that must be decided. The only ques- tions are of law, which can be determined expediently by a judge. In such an action, the party who believes that he or she is entitled to prevail as a MATTER OF LAW makes a motion for summary judgment. The motion may be directed toward all or part of case. In deciding such a motion, the court considers the entire record of the case and, if the eviden ce warrants it, can even grant a summary judgment to the party who did not ask for it. Summary judgment is governed in federal courts by the Federal Rules of CIVIL PROCEDURE and in STATE COURTS by state codes of civil procedure. SUMMARY JUDGMENT A summary judgment is a procedural device used during civil litigation to promptly and expedi- tiously dispose of a case without a trial. It is used when there is no disp ute as to the material facts of the case and a party is entitled to judgment as a matter of law. Any party may move for summary judg- ment; it is not uncommon for both parties to seek it. A judge may also determine on her own initiative that summary judgment is appropri- ate. Unlike with pretrial motions to dismiss, information such as affidavits, interrogatories, depositions, and admissions may be considered on a motion for summary judgment. Any evidence that would be admissible at trial under the rules of evidence may support a motion for summary judgment. Usually a court will hold oral arguments on a summary judgment motion, although it may decide the motion on the parties’ briefs and supporting documenta- tion alone. The purpose of summary judgment is to avoid unnecessary trials. It may also simplify a trial, as when partial summary judgment dispenses with certain issu es or claims. For example, a court might grant partial summary judgment in a PERSONAL INJURY case on the issue of liability. A trial would still be necessary to determine the amount of damages. Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the MOVANT must be entitled to judgment as a MATTER OF LAW. A genuine issue implies that certain facts are disputed. Usually a party opposing summary judgment must introduce evidence that contradicts the moving party’s version of the facts. Moreover, the facts in dispute must be central to the case; irrelevant or minor factual disputes will not defeat a motion for summary judgment. Finally, the law as applied to the undisputed facts of the case must mandate judgment for the moving party. Summary judgment does not mean that a judge decides which side would prevail at trial, nor does a judge determine the credibility of witnesses. Rather, it is used when no factual questions exist for a judge or jury to decide. The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have the BURDEN OF PROOF at trial. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party. Where the opposing party will bear the burden of proo f at trial, the moving party may obtain summary judgment by showing that the opposing party has no evidence or that its evidence is insuffi- cient to meet its burden at trial. Jurisdictions vary in their requirements for opposing a summary judgment motion. Federal rule of CIVIL PROCEDURE 56 governs the applica- bility of summary judgment in federal proceed- ings, and each state has its own rules. In some states it is sufficient if the party opposing the motion merely calls the court’s atten tion to inconsistencies in the pleadings and the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 SUIT movant’s evidence without introducing further evidence. This approach rarely results in a court’s granting summary judgment. By con- trast, other jurisdictions, including federal courts, do not permit a party opposing summary judgment to rest on the pleadings alone. Once the movant has met the initial burden of showing the absence of a genuine issue of material fact, the burden then shifts to the opposing party to set forth specific evidence demonstrating that a genuine issue for trial indeed exists. FURTHER READINGS Kane, Mary Kay. 2007. Civil Procedure in a Nutshell. 6th ed. St. Paul, Minn: West Law School. Little, Laura. 2007. Federal Courts Examples & Explanations Boston: Aspen. Wright, Charles Alan. 2002. Law of Federal Courts. 6th ed. St. Paul, Minn.: West Group. CROSS REFERENCE Civil Procedure. SUMMARY PROCEEDINGS An expedited and streamlined form of litigation, in various state courts, for the prompt disposition of legal actions, as in disputes between a landlord and a tenant over the tenant’s overstaying on the leased premises after the term has run (known as a “holdover” situation), or when a landlord attempts to hasten the tenant’s removal from the property for any number of reasons (known as an “eviction”). LEGAL PROCEEDINGS are regarded as summary when they are shorter and simpler than the ordinary steps in a suit. Summary proceedings are ordinarily available for cases that require prompt action and generally involve a small number of clearcut issues. Different judicial districts have different requirements in these proceedings. FURTHER READINGS Dolan, Robert F. 2009. Rasch’s Landlord and Tenant Including Summary Proceedings. 4th ed. St. Paul, Minn.: West. SUMMARY PROCESS A legal procedure used for enforcing a right that takes effect faster, more efficiently, and more cost- effectively than ordinary methods. The legal papers— a court order, for example—used to achieve an expeditious resolution of the controversy. Because summary process deprives a DEFEN- DANT of all the time and legal defenses usually available, a PLAINTIFF may invoke it only when specifically permitted by law. For example, some states (for example, Massachusetts) pro- vide for a special procedure for evicting a tenant without the normal delays of a lawsuit, and some states allow summary process for resolv- ing incidental issues that arise between the parties during the pendency of a lawsuit. In the case of EVICTION of a non-paying tenant, the purpose is to come to a speedy resolution and consider the delinquent payment and any basis the tenant may have had for withholding the rent. As such, its scope is narrow and focused. SUMMONS The paper that tells a defendant that he or she is being sued and asserts the power of the court to hear and determine the case. A form of legal process that commands the defendant to appear before the court on a specific day and to answer the complaint made by the plaintiff. The summons is the document that offi- cially starts a lawsuit. It must be in a form prescribed by the law governing procedure in the court involved, and it must be properly served on, or delivered to, the defendant. If the prescribed formalitie s are not observed, the court lacks authority to hear the dispute. In the federal district courts, the summons is prepared by the attorney for the plaintiff and given to the clerk of the court where the case will be heard. When the plaintiff’s complaint, setting out his claim, is filed with the court, the clerk signs the summons and gives it and a copy of the complaint to a U.S. mars hal or to someone else appointed to serve the papers. Once the summons and complaint are served on the defendant, she must respond to them within twenty days or whatever other time the court allows. Some states follow this same procedure, but other states allow service of the summons and complaint by delivery directly to the defendant. In those states, the lawsuit is considered begun as soon as the defendant receives the papers, even though nothing has yet been filed with a court. Actions commenced in this way are sometimes called “hip pocket” suits. CROSS REFERENCE Service of Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUMMONS 435 A sample summons. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. __________________________________________________ Plaintiff v. __________________________________________________ Defendant SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 20 days after service of this summons on you (not counting the day you received it)—or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)—you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: _____________________ ____________________________________________ Signature of Clerk or Deputy Clerk Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) ________________________________________________________ was received by me on (date) _______________________________. I personally served the summons on the individual at (place) _________________________________________________ _________________________________________________ on (date) _______________________________________; or I left the summons at the individual’s residence or usual place of abode with (name) ______________________________________ _____________________________________________________________________, a person of suitable age and discretion who resides there, on (date) ______________________________________ , and mailed a copy to the individual’s last known address; or I served the summons on (name of individual) __________________________________________________ , who is designated by law to accept service of process on behalf of (name of organization) __________________________________ on (date) ______; or I returned the summons unexecuted because ____________________________________________________________; or Other (specify): My fees are $ ___________________ for travel and $ ________________ for services, for a total of $ __________________. I declare under penalty of perjury that this information is true. Date: ______________________ ___________________________________________ _ Server’s signature ____________________________________________ Printed name and title ____________________________________________ Server’s address AO 440 (Rev. 02/09) Summons in a Civil Action United States District Court for the Civil Action No. 0.00 Summons Additional information regarding attempted service, etc: GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 SUMMONS v SUMNER, CHARLES Charles Sumner served as U.S. senator from Massachusetts for 23 years starting in 1851. His career in the Senate was a turbulent one, marked by much controversy, but he is cited as one of the major proponents of rights for blacks. Sumner was born January 6, 1811, in Boston, Massachusetts. Sumner graduated from Harvard University with a bachelor of arts degree in 1830 and a bachelor of laws degree in 1833. After his ADMISSION TO THE BAR in 1834, Sumner traveled through Europe from 1837 to 1840 to analyze foreign judicial systems. When he returned to the United States, he became interested in reform issues and emerged as a reform leader and an abolitionist. He was instrumental in the development of the Free- Soil Party in 1848 and endorsed MARTIN VAN BUREN , the candidate of that party, in the presidential election of 1848. Sumner staunchly opposed SLAVERY and advocated the revocation of the FUGITIVE SLAVE ACT OF 1850 (9 Stat. 462). He vehemently attacked the Kansas-Nebraska Bill of 1854 (10 Stat. 277), which allowed residents of new territories to determine the slavery issue for their areas. In 1856, in a speech known as “The Crime against Kansas,” Sumner attacked STE- PHEN A . DOUGLAS, the originator of the bill, and South Carolina senator Andrew Pickens Butler, who strongly supported slavery. After the scathing oration, Sumner was beaten with a cane by Representative Preston Smith Brooks, who was related to Senator Butler. The injuries Sumner sustained prevented him from actively participating in senatorial affairs for the next three years. In 1861 Sumner became the presiding officer of the Senate Committee on Foreign Relations. He held that position until 1871, when his radical behavior resulted in his removal from that office. During the RECONSTRUCTION period, Sumner was a member of the radical Republican faction. He opposed President Andrew Johnson’s con- servative policy toward the South and advocated a policy that would allow freed men to own land that was previously a part of the ir owner’s estates. Sumner also believed that the state legislatures should control the school system, and that all races should be allowe d to attend public schools. Sumner and Johnson were often Charles Sumner 1811–1874 ▼▼ ▼▼ 1800 1875 1850 1825 ◆◆◆ ◆ ◆ ◆ ❖ ❖ 1811 Born, Boston, Mass. 1812–14 War of 1812 1834 Admitted to Mass. bar 1833 Earned LL.B. from Harvard 1830 Earned B.A. from Harvard 1837–40 Traveled to Europe and analyzed foreign judicial systems 1848 Helped found the Free-Soil Party 1856 Attacked pro-slavery senators in a speech called "The Crime Against Kansas"; beaten with a cane by Rep. Brooks as a result 1851–74 Served in U.S. Senate 1861–65 U.S. Civil War 1861–71 Presided over the Senate Committee on Foreign Relations 1874 Died, Washington, D.C. 1868 Supported the impeachment of President Johnson Charles Sumner. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SUMNER, CHARLES 437 . example, the law of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUBSTANTIVE LAW 4 29 contracts, torts, wills, and real property; the essential substance of rights under law. Substantive law and PROCEDURAL. REFERENCE Service of Process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUMMONS 435 A sample summons. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. __________________________________________________ . Final Data for 2006, April 20 09. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SUICIDE 431 The