CRS Annotated Constitution
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The Procedure Which Is Due Process
The Interests Protected: Entitlements and Positivist Recognition.—“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due[p.1724]process is not infinite.”180 Whether any procedural protections are due depends upon an analysis which of “whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.”181 Traditionally, the Court has accorded due process recognition to one’s “life, liberty, or property” as determined by reference to common understanding, as embodied in the development of the common law. One’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law for offenses against law deemed by a legislative body to be particularly heinous. One’s liberty, one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo–American countries.
Expansion of the understanding embodied in the “liberty and property” aspects of the clause began in the 1960s and followed an inconsistent path of acceleration and reining–in to the present. It has previously been noted that the Court’s construction of “liberty” has long been much broader than would be encompassed within freedom from bodily restraint; while liberty of contract met its demise, the rise of rights of privacy, which included marital and intimate relationships, interests in one’s dignity and reputational concerns, and the like, continues to lead to enlargement of the compass of the doctrine. A widening of the “property” concept in the 1960s occurred with respect to according protection to such public benefits as welfare assistance and other benefits and privileges that government conferred and that it could withdraw altogether for everyone, but as to which individual recipients and claimants had to be accorded proper procedures before they could lose their entitlement. Similarly, other kinds of conditional property rights, such as the interest of an installment buyer of goods in retaining control until it could be shown he was in default, were accorded greater protection.
The key to this expansion may be found in the intertwined doctrinal strands of jurisprudential theory under which the “right– privilege” distinction was abandoned and a positivist conception of entitlements arose. The former principle, discussed previously in[p.1725]the First Amendment context,182 was pithily summarized by Justice Holmes years ago in dismissing a suit by a policeman protesting the dismissal from his job. “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”183 Most often, the assertion that one had no “vested property interest” in something was made to justify the taking of that interest or the disregarding of that interest without substantive restraints being relevant, but it was also true that it was said that if something was “only” a privilege, such as government employment184 or some form of public assistance,185 procedural due process guarantees were also inapplicable.186 In other words, if government need not provide something, it could provide it with any attached conditions it might choose. This line of thought was always opposed by the “unconstitutional conditions” doctrine, under which it was said that “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”187 Nonetheless, the two doctrines coexisted in an unstable relationship, until, in the 1960s and thereafter, the right– privilege distinction was largely shelved.188
Concurrently with the virtual demise of the “right–privilege” distinction, there arose the “entitlement” doctrine, under which the Court erected a barrier of procedural—but not substantive—protections against erroneous governmental deprivation of something it might within its discretion have bestowed.189 Thus, the Court found protected interests created by positive state enactments or[p.1726]practices; that is, the source of a right was ascertained not from tradition or the common law or “natural rights,” but rather a property or liberty interest was discerned in the governmental statute or practice that gave rise to it. Indeed, for a time it appeared that this positivist conception of rights was going to displace the previous traditional sources.
That advent of the new doctrine may be placed in Goldberg v. Kelly.190 The Court held that, inasmuch as termination of welfare assistance pending resolution of a controversy over eligibility may deprive an eligible recipient of the means of livelihood, government must provide a pre–termination evidentiary hearing in which an initial determination of the validity of the dispensing agency’s grounds for discontinuance of payment could be made. It was observed that the state agency did “not contend that procedural due process is not applicable to the termination of welfare benefits. Such benefits are a matter of statutory entitlement for persons qualified to receive them.”191 Provisions for loss of some benefit or privilege upon the establishing of some ground for taking it away was perceived as giving the holder a property interest entitling him to proper procedure before termination or revocation.
Therefore, a wage garnishment statute which failed to provide for notice to the garnishee and an opportunity for the making of some form of determination that the garnisher is likely to prevail before the garnishee is deprived of the use of his money, even temporarily, was held not to accord due process.192 Similarly voided was a repleven statute which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond and the allegation that the possessor of the property was in arrears on payment on the goods and that they reverted to the seller.193 A state motor vehicle financial responsibility law which provided that the registration and license of an uninsured motorist involved in an accident was to be suspended unless he posted security for the amount of damages claimed by an aggrieved party without affording the driver any opportunity to raise the issue of liability prior to suspension violated the due process clause.194
The Court’s emphasis in these cases upon the importance to the claimant of retention of the rights led some lower courts to de[p.1727]termine the application of the due process clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate. “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”195 To have a property interest in the constitutional sense, the Court held, it was not enough that one have an abstract need or desire for a benefit, that one have only a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”196 Thus, in Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one– year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.197 On the other hand, in Perry v. Sindermann,198 while there was no contract with a tenure provision nor any statutory assurance of it, the “existing rules or understandings” were deemed to provide a legitimate expectation independent of any contract provision, so that a professor employed for several years at a public college, in which the actual practice had the characteristics of tenure, had a protected interest. A statutory assurance was found in Arnett v. Kennedy,199 in which the civil service laws and regulations made the continued employment subject to defeasance “only for such cause as would promote the efficiency of the service.” On the other hand, a policeman who was a “permanent employee” under an ordinance which appeared to afford him a continuing position subject to conditions subsequent was held not to be protected by the due process clause because the federal district court had interpreted the ordinance as providing only[p.1728]employment at the will and pleasure of the city and the Supreme Court chose not to disturb that interpretation.200
Beyond employment the Court found “legitimate entitlements” in a variety of situations. Thus, because Ohio included within its statutes a provision for free education to all residents between five and 21 years of age and a compulsory–attendance at school requirement, the State was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days.201 “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.”202 The Court is highly deferential, however, to dismissal decisions based on academic grounds.203
The most striking application of such due process analysis, to date, is Logan v. Zimmerman Brush Co.,204 in which a state antidiscrimination law required the enforcing agency to convene a factfinding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court held that Logan had been denied due process. His cause of action was a property interest; older cases had clearly established causes of action as property and, in any event, Logan’s claim was an entitlement grounded in state law and it could be removed only[p.1729]“for cause.” That property interest existed independently of the 120– day time period and could not simply be taken away by agency action or inaction.205 Beyond statutory entitlements, the Court has looked to state decisional law to find that private utilities may not terminate service at will but only for cause, for nonpayment of charges, so that when there was a dispute about payment or the accuracy of charges, due process required the utility to follow procedures to resolve the dispute prior to terminating service.206
With respect to liberty, the Court has followed a somewhat more meandering path, but it has arrived at the same place. In Wisconsin v. Constantineau,207 it invalidated a statutory scheme by which a person, without any opportunity for a hearing and rebuttal, could be labeled an “excessive drinker” and barred from places where alcohol was served; without discussing the source of the entitlement, the Court noted that governmental action was stigmatizing the individual’s reputation, honor, and integrity. But, in Paul v. Davis,208 the Court looked exclusively to positive statutory enactments to determine whether a liberty interest was entitled to protection. Davis involved official defamation of someone—the police included plaintiff’s photograph and name on a list of “active shoplifters” circulated to merchants—but the Court held that damage to reputation alone did not constitute a deprivation of any interest that the due process clause protected.209 “Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interest by means of damage actions.”210
A number of liberty interest cases involve prisoner rights and are dealt with in the section on criminal due process. But in terms of the emphasis upon positive entitlements, it is useful to treat[p.1730]them briefly here. In Meachum v. Fano,211 the Court held that a state prisoner was not entitled to a factfinding hearing when he is transferred to a different prison in which the conditions were substantially less favorable to him, because (1) the due process clause liberty interest by itself is satisfied by the initial valid conviction which had deprived him of liberty, and (2) no state law guaranteed him the right to remain in the prison to which he was initially assigned, subject to transfer for cause of some sort. Under state law, a prisoner could be transferred for any reason or for no reason, and the due process clause did not mandate a different result. The decision of prison officials, therefore, was not dependent upon any state of facts that would be found upon a hearing. But in Vitek v. Jones,212 a protected entitlement interest was found. The state statute at issue permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a finding, by a designated physician or psychologist, that the prisoner “suffers from a mental disease or defect” and “cannot be given treatment in that facility.” Because the transfer was conditioned upon a “cause,” the establishment of the facts necessary to show the cause had to be done through fair procedures.
However, the Vitek Court also held that, independent of the statutory entitlement, the prisoner had a “residuum of liberty” in being free from the different confinement and from the stigma of involuntary commitment for mental disease that the due process clause protected. Thus, the Court has recognized, in this case and in the cases involving revocation of parole or probation,213 a liberty interest that is separate from a positivist entitlement and that can be taken away only through proper procedures. But with respect to the possibility of parole or commutation or otherwise more rapid release, no matter how much the expectancy matters to a prisoner, in the absence of some form of positive entitlement, the prisoner may be turned down without observance of procedures.214 Summarizing its prior holdings, the Court recently concluded that two requirements must be present before a liberty interest is created in the prison context: the statute or regulation must contain “substantive predicates” limiting the exercise of discretion, and there[p.1731]must be explicit “mandatory language” requiring a particular outcome if substantive predicates are found.215
Supplement: [P. 1731, add to text following n.215:]
In an even more recent case, the Court limited the application of this test to those circumstances where the restraint on freedom imposed by the State creates an “atypical and significant” deprivation.18
In Ingraham v. Wright,216 the Court, unanimously, agreed that freedom from wrongfully or excessively administered corporal punishment was a liberty interest of school children protected by the due process clause irrespective of positive state protection. “The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”217
In Arnett v. Kennedy,218 three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right–privilege distinction in a new formulation. Dealing with a federal law conferring upon employees the right not to be discharged except for cause, the Justices acknowledged the prior formulation that recognized that due process rights could be created through statutory grants of entitlements, but they went on to observe that the same law withheld the procedural provisions now contended for; in other words, “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest.”219 Congress (and state legislatures) could qualify the conferral of an interest the due process clause might otherwise require.
But the other six Justices, while disagreeing among themselves in other respects, rejected this attempt so to formulate the issue. “This view misconceives the origin of the right to procedural due process,” Justice Powell wrote. “That right is conferred not by legislative grace but by constitutional guarantee. While the legislature[p.1732]may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.”220 Yet, in Bishop v. Wood,221 the Court appeared to come close to adopting the three–Justice Arnett position, the dissenters accusing the majority of having repudiated the majority position in Arnett, and in Goss v. Lopez,222 while the opinion of the Court stated the expressed formulation of Justice Powell in Arnett, the Justice himself dissented, using language quite similar to the Rehnquist Arnett language. More recently, however, first in a liberty interest case and then in a property interest case, the Court has squarely held that because “‘minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.’ . . . Indeed, any other conclusion would allow the State to destroy at will virtually any state–created property interest.”223 Substantive entitlements, therefore, may owe their existence to positive enactment, but the procedural protections are found in the judiciary’s reading of the due process clause.
Supplement: [P. 1726, add to n.194:]
But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).
Supplement: [P. 1730, add to n.214 after citation to Connecticut Bd. of Pardons v. Dumschat:]
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) .
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