CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next

Proceedings in Which Procedural Due Process Must Be Observed.— While due notice and a reasonable opportunity to be heard to present one’s claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries,224 there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. Thus, persons adversely affected by a specific law cannot challenge its validity on the ground that the legislative body or one of its committees gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. “Where a rule of conduct applies to more[p.1733]than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.”225 Similarly, when an administrative agency engages in a legislative function, as, for example, when in pursuance of statutory authorization it drafts regulations of general application affecting an unknown number of persons, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation.226 On the other hand, if a regulation, sometimes denominated an “order,” is of limited application, that is, affects the property or interests of specific named or nameable individuals or an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action becomes a matter of greater urgency and must be determined by evaluation of the factors discussed herein.227

“It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights which, by later resort to the courts, secures to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process.”228 In one of the initial decisions construing the due process clause (this of the Fifth Amendment), the Court upheld the actions of the Secretary of the Treasury, acting pursuant to statute, to obtain from a collector of customs a substantial amount of money on which it was claimed he was in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and remitting him to suit (the statute waiving the immunity of the United States) for recovery of his property upon proof that he had not withheld funds from the Treasury. While acknowledging that history and settled practice required proceedings in which pleas,[p.1734]answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.229 In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment. The fact that the execution was issued in the first instance by a governmental officer and not from a court, followed by personal notice and a right to take the case into court, was seen as unobjectionable.230

A State may not, consistent with the due process clause, enforce a judgment against a party named in the proceeding without having given him an opportunity to be heard sometime before final judgment is entered.231 With regard to the presentation of every available defense, however, the requirements of due process do not necessarily entail affording an opportunity to do so before entry of judgment. The person may be remitted to other actions initiated by him232 or an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity to be heard on the issue of liability, was not denied due process where the state practice provided the opportunity for such a hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial of due process upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.233 On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material was[p.1735]held to have been deprived of his rights without due process of law.234


224 Twining v. New Jersey, 211 U.S. 78, 110 (1908) ; Jacob v. Roberts, 223 U.S. 261, 265 (1912) .
225 Bi–Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915) . See also Bragg v. Weaver, 251 U.S. 57, 58 (1919) . And cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982) .
226 United States v. Florida East Coast Ry., 410 U.S. 224 (1973) .
227 Id. at 245 (distinguishing between rule–making, at which legislative facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908) .
228 Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944) .
229 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).
230 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928) .
231 Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918) ; Baker v. Baker, Eccles & Co., 242 U.S. 294, 403 (1917) ; Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900) .
232 Lindsey v. Normet, 405 U.S. 56, 65–69 (1972) . However, if one would suffer too severe an injury between the doing and the undoing, he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972) .
233 American Surety Co. v. Baldwin, 287 U.S. 156 (1932) . Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982) .
234 Saunders v. Shaw, 244 U.S. 317 (1917) .
Fourteenth Amendment -- Table of ContentsPrev | Next