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CRS Annotated Constitution

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The Requirements of Due Process.—Bearing in mind that due process tolerates variances in form “appropriate to the nature of the case,”265 it is nonetheless possible to indicate generally the basic requirements. “[P]rocedural due process rules are shaped by the risk of error inherent in the truth–finding process as applied to the generality of cases.”266 “Procedural due process rules are meant to protect persons not from the deprivation, but from the[p.1741]mistaken or unjustified deprivation of life, liberty, or property.”267 The rules “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests.268 Thus, after the determination of the existence of a protected interest at issue, it must still be determined what procedure is adequate.

(1) Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”269 The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.270 Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.271

Supplement: [P. 1741, add to text following n.270:]

Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources.20

(2) Hearing. “[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”272 “Parties whose rights are to be affected are entitled to be heard.”273 The notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”274 “The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment. . . .”275 The Court has in recent years developed a complex calculus to determine whether a hearing should precede the deprivation or whether a prompt post–deprivation hearing would be adequate. Generally, where the loss, even temporarily, would be severe or catastrophic, the hearing must come first;276 where a temporary deprivation[p.1742]would be less severe and the opposing interest is important, the hearing may come later,277 so long as it is promptly assured.278 Too, the nature of what must be shown will be taken into account. Where the showing to be established is largely formal or subject to substantial documentary evidence, a post–termination hearing may suffice,279 while in cases in which the evidence is largely subjective and dependent upon the personal appearance of the claimant the hearing must ordinarily precede the loss and the circumstance may require a more highly structured proceeding.280 Sometimes, because of the nature of the opposing interest and the circumstances of the determination, the hearing need involve only minimal formality.281 The hearing requirement does not depend upon an advance showing that the claimant will prevail at such a hearing.282 While written presentations may be acceptable in some situations, in others the issue of veracity may necessitate oral presentation or oral examination of witnesses, or the petitioner may not have the ability to present his case in writing.283

(3) Impartial Tribunal. Just as in criminal and quasi–criminal cases,284 “an impartial decision maker” is an “essential” right in civil proceedings as well.285 “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”286 Thus, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others’ investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction.287 But[p.1743]there is a “presumption of honesty and integrity in those serving as adjudicators,”288 so that the burden is on the objecting party to show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. It is not, without more, a violation of due process to combine investigating and adjudicating functions in the same agency,289 although the question of combination of functions is a substantial one in administrative law.290 A showing of bias or of strong implications of bias was deemed made in a case in which the state optometry board, which was made up only of private practitioners, was proceeding against other licensed optometrists for unprofessional conduct, because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.291 However, the Court held that school board members did not have such an official or personal stake in the decision as to disqualify them from making the decision whether to fire teachers who had engaged in a strike against the school system in violation of state law.292 A lesser standard of impartiality applies to an administrative officer who acts in a prosecutorial role.293

(4) Confrontation and Cross–Examination. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross–examine adverse witnesses.”294 Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” the individual’s right to show that it is untrue depends on the rights of confrontation and cross–examination. “This Court has been zealous to protect these rights from ero[p.1744]sion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”295

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum. “[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”296 Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so.297 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization.298

(6) Decision on the Record. [T]he decisionmaker’s conclusion as to a recipients’ eligibility must rest solely on the legal rules and evidence adduced at the hearing. . . . To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.”299

(7) Counsel. In Goldberg v. Kelly,300 the Court held that an agency must permit the recipient to be represented by and assisted by counsel. It did not, however, decide that the agency must provide counsel for one unable to afford his own and did not decide that the agency need not do so. In the years since, the right of civil litigants in court and persons before agencies who could not afford retained counsel has excited much controversy, and while quite recently the Court has applied its balancing standard to require a case–by–case determination with respect to the right to appointed[p.1745]counsel, the matter seems far from settled. In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized as “an extremely important one” the parent’s interest, but observed that the State’s interest in protecting the welfare of children was likewise very important. The interest in correct factfinding was strong on both sides, but, the Court thought, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised.301 But what tipped the scale in the Court’s decision not to require counsel in this case was the “pre–eminent generalization it drew from its precedents that an indigent has an absolute right to appointed counsel only where he may lose his physical liberty if he loses the litigation.302 Thus, in all other situations when liberty or property interests are present, the right of an indigent to appointed counsel is to be determined on a case–by–case basis, initially by the trial judge, subject to appellate review.303 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights,304 and it is to be supposed that the counsel issue will recur.


265 Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950) .
266 Mathews v. Eldridge, 424 U.S. 319, 344 (1976) .
267 Carey v. Piphus, 435 U.S. 247, 259 (1978) .
268 Fuentes v. Shevin, 407 U.S. 67, 81 (1972) . At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266–67 (1978) ; Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) .
269 Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950) .

Supplement: [P. 1741, add to n.269:]

See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where taxpayers who challenged a county’s occupation tax had not been informed of the prior case and where their interests had not been adequately protected).

270 Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970) .
271 Armstrong v. Manzo, 380 U.S. 545, 550 (1965) ; Robinson v. Hanrahan, 409 U.S. 38 (1974) ; Greene v. Lindsey, 456 U.S. 444 (1982) .
272 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) .

Supplement: [P. 1741, add to n.272:]

Even where a court finds that a party was not prejudiced by the lack of a hearing, and where an appeal was provided, failure to give notice and hearing is a violation of due process. Nelson v. Adams, 120S. Ct. 1579 (2000) (amendment of judgment to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

273 Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).
274 Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .
275 Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972) . See Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Justice Frankfurter concurring).
276 Goldberg v. Kelly, 397 U.S. 254 (1970) ; Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) .
277 Arnett v. Kennedy, 416 U.S. 134 (1974) ; Mathews v. Eldridge, 424 U.S. 319 (1976) ; Barry v. Barchi, 443 U.S. 55 (1979) .
278 Id. at 66.
279 Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976) ; Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) ; Mackey v. Montrym, 443 U.S. 1, 13–17 (1979) ; Barry v. Barchi, 443 U.S. 55, 65–66 (1979) .
280 Goldberg v. Kelly, 397 U.S. 254 (1970) .
281 Goss v. Lopez, 419 U.S. 565 (1975) (temporary suspension of student from school). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978) .
282 Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915) .
283 Goldberg v. Kelly, 397 U.S. 254, 266–67 (1970) ; Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976) . See also FCC v. WJR, 337 U.S. 265, 275–77 (1949) .
284 Tumey v. Ohio, 273 U.S. 510 (1927) ; In re Murchison, 349 U.S. 133 (1955) .
285 Goldberg v. Kelly, 397 U.S. 254, 271 (1970) .
286 Marshall v. Jerrico, 446 U.S. 238, 242 (1980) ; Schweiker v. McClure, 456 U.S. 188, 195 (1982) .
287 Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) .
288 Schweiker v. McClure, 456 U.S. 188, 195 (1982) ; Withrow v. Larkin, 421 U.S. 35, 47 (1975) ; United States v. Morgan, 313 U.S. 409, 421 (1941) .
289 Withrow v. Larkin, 421 U.S. 35 (1975) .
290 Id. at 51.
291 Gibson v. Berryhill, 411 U.S. 564 (1973) .
292 Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976) . Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196–99 (Justice White), and 216 (Justice Marshall).
293 Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.” Id. at 249.
294 Goldberg v. Kelly, 397 U.S. 254, 269 (1970) . See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913) ; Willner v. Committee on Character, 373 U.S. 96, 103–04 (1963) . Cf. Sec. 7(c) of the Administrative Procedure Act, 5 U.S.C. Sec. 556 (d).
295 Greene v. McElroy, 360 U.S. 474, 496–97 (1959) . But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976) .
296 Greene v. McElroy, 360 U.S. 474, 496 (1959) , quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970) .
297 Recommendations and Reports of the Administrative Conference of the United States 571 (1968–1970).
298 FMC v. Anglo–Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964); Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970) .
299 Goldberg v. Kelly, 397 U.S. 254, 271 (1970) . The exclusiveness of the record is fundamental in administrative law. See 7(d) of the Administrative Procedure Act, 5 U.S.C. Sec. 556 (e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street Ry. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence).
300 397 U.S. 254, 270–71 (1970) .
301 Lassiter v. Department of Social Services, 452 U.S. 18 (1981) . The decision was a five–to–four one, Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.
302 Id. at 25–27. The Court purported to draw the distinction from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v. Eldridge, upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right, thus, at least in this context, reducing the value of the first Eldridge factor.
303 Id. at 452 U.S., 31–32. The Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case–by–case application Cf. 424 U.S. 319, 344 (1976) .
304 E.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state–funded blood testing in a paternity action the State required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights).

Supplement Footnotes

20 City of West Covina v. Perkins, 525 U.S. 234 (1999) .
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