Judge Saad stands on fascist principle: "due process is a flexible concept"
Judge Henry Saad, reportedly a nice man but an apologist for insurance companies and big corporations, signed an opinion last month that contains some wording that is at best "a slippery slope." Darnell Alvin had sued two undercover Detroit City Police officers for false arrest and assault. He served a Summons on the individual defendants by hand-delivering it to the desk sergeant at their Precinct. The Desk Sergeant acknowledged service for the two men, however, the law on service of process does not provide for this kind of notice to a Defendant.
Alvin then noticed for hearing a default of the two officers. Less than 24 hours before the hearing, his attorney was notified that the defendants were contesting service, and at the hearing the Complaint and process were dismissed with prejudice. Because the statute of limitations had run in the interim, Alvin cannot re-file. Alvin appealed, arguing that providing him notice of the allegations of defective service only 24 hours before the contested hearing constituted a denial of due process.
Alvin's attorneys argued that the Defendants' lack of notice of their intended defense denied Alvin a "meaningful opportunity to be heard" on the issue of service of process at the hearing where the claim was dismissed. The Court of Appeals affirmed the dismissal, pointing out that Alvin's attorneys were notified of the Defendants' position the day before the hearing--[giving them an entire evening to prepare, for gosh sakes!]. As the judges declaimed, "While only one or two days['] notice may seem like a temporally short period of time [we're not sure if there is such a thing as a short period of time that isn't "temporal"--but redundant use of the term makes the judgment sound wiser...], due process is a flexible concept..."The Court also made a legal distinction: It pointed out that the trial judge "did not grant summary disposition in defendants' favor. It denied plaintiff's motion for default judgment, set aside the default, and dismissed the case...." The Court also noted that while an agent may be appointed to receive service of process, the Plaintiff's claim that the "long-standing procedure" of the desk sergeant accepting service was not documented in writing at the hearing.