When Process Is Due

The Procedure Which Is Due Process

The Interests Protected: "Life, Liberty and Property".— The language of the Fourteenth Amendment requires the provision of due process when an interest in one's "life, liberty or property" is threatened.723 Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.724 In the 1960s, however, the Court began a rapid expansion of the "liberty" and "property" aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The "life" interest, on the other hand, while often important in criminal cases, has found little application in the civil context.

The Property Interest.—The expansion of the concept of "property rights" beyond its common law roots reflected a recognition by the Court that certain interests which fell short of traditional property rights were nonetheless important parts of people's economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.725 Or, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail.726 Or, the continued possession of a drivers license, which may be essential to one's livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability.727

723 Morrissey v. Brewer, 408 U.S. 471, 481 (1982). "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 process is not infinite." Board of Regents v. Roth, 408 U.S. 564, 569-71 (1972). Developments under the Fifth Amendment's due process clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).

724 For instance, at 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, and only for offenses deemed by a legislative body to be particularly heinous. One's liberty, generally expressed as 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.

725 Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).

726 Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).

727 Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love, 431 U.S. 105 (1977) with Mackey v. Montrym, 443 U.S. 1 (1979). 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).

A more fundamental shift in the concept of property occurred with recognition of society's growing economic reliance on government benefits, employment and contracts,728 and with the decline of the "right-privilege" principle. This principle, discussed previously in the First Amendment context,729 was pithily summarized by Justice Holmes years ago in dismissing a suit by a policeman protesting being fired from his job: "[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."730 Under this theory, a finding that a litigant had no "vested property interest" in government employment731 or that some form of public assistance was "only" a privilege,732 meant that no procedural due process was required before depriving a person of that interest.733 The reasoning was that if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or protected by whatever procedures it might find appropriate.

The conceptual underpinnings of this position, however, were always in conflict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the "unconstitutional conditions" doctrine, held 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."734 Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, at which point the right-privilege distinction became largely disregarded.735


729 Tribe, supra, at 1084-90.

730 McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 2d 517, 522 (1892).

731 Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff'd by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of Educ., 342 U.S. 485 (1952).

732 Flemming v. Nestor, 363 U.S. 603 (1960).

733 Barsky v. Board of Regents, 347 U.S. 442 (1954).

734 Perry v. Sinderman, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958).

735 See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Much of the old fight had to do with imposition of conditions on admitting corporations into a State. Cf. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656-68 (1981) (reviewing the cases). The right-privilege distinction is not, however, totally moribund. See Buckley v. Valeo, 424 U.S. 1, 108-09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971).

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—protections736 against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and "natural rights." Now, under a new "positivist" approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.

As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly.737 In Goldberg, the Court held that, inasmuch as termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pre-termination evidentiary hearing in which an initial determination of the validity of the dispensing agency's grounds for termination could be made. In order to reach this conclusion, the Court found that such benefits "are a matter of statutory entitlement for persons qualified to receive them."738 Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

736 Meaning that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982).

737 397 U.S. 254 (1970).

738 397 U.S. at 261-62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).

At first, the Court's emphasis on the importance of the statutory rights to the claimant led some lower courts to apply 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."739 To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or 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."740

Consequently, in Board of Regents v. 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.741 On the other hand, in Perry v. Sindermann,742 a professor employed for several years at a public college was found to have a protected interest, although his employment contract had no tenure provision nor was there a statutory assurance of it.743 The "existing rules or understandings" were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision.744

739 Board of Regents v. Roth, 408 U.S. 564, 569-71 (1972).

740 408 U.S. at 577. Although property interests often arise by statute, the Court has also recognized interests established by state case law. Thus, where state court holdings required that private utilities terminate service only for cause (such as nonpayment of charges), then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).

741 436 U.S. at 576-78. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the State had not made any charges against him or taken any actions that would damage his reputation or stigmatize him. 436 at 572-75. For an instance of protection accorded a claimant on the basis of such an action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347- 50 (1976); Vitek v. Jones, 445 U.S. 480, 491- 94 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82-84 (1978).

742 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).

743 408 U.S. at 601-03 (1972). In contrast, a statutory assurance was found in Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations allowed suspension or termination "only for such cause as would promote the efficiency of the service." 416 U.S. at 140. 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 interpreted the ordinance as providing only employment at the will and pleasure of the city, an interpretation that the Supreme Court chose not to disturb. Bishop v. Wood, 426 U.S. 341 (1976). "On its face," the Court noted, "the ordinance on which [claimant relied] may fairly be read as conferring" both "a property interest in employment . . . [and] an enforceable expectation of continued public employment." 426 U.S. at 344-45 (1976). The district court's decision had been affirmed by an equally divided appeals court and the Supreme Court deferred to the presumed greater expertise of the lower court judges in reading the ordinance. 426 U.S. at 345 (1976).

744 408 U.S. at 601

The Court has also found "legitimate entitlements" in a variety of other situations beyond employment. In Goss v. Lopez,745 an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, 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. "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."746 The Court is highly deferential, however, to school dismissal decisions based on academic grounds.747

The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,37 the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes.38 Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.39

An incipient counter-revolution to the expansion of due process appears to have been at least temporarily rebuffed, at least as regards entitlements. In Arnett v. Kennedy,748 three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law which provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, went on to observe that the same law specifically withheld the procedural protections now being sought by the employees. Because "the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,"749 the employee would have to "take the bitter with the sweet."750 Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process which might be otherwise required.

745 419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). And see Board of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions).

746 Goss v. Lopez, 419 U.S. at 574.. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer's license); O'Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care.)

747 Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985). Although the Court "assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment" in a state university, this limited constitutional right is violated only by a showing that dismissal resulted from "such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." 474 U.S. at 225.

37 545 U.S. 748 (2005).

38 545 U.S. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.” Id. at 763.

39 545 U.S. at 764-65.

748 416 U.S. 134 (1974).

749 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

750 416 U.S. at 154.

But the other six Justices, while disagreeing among themselves in other respects, rejected this attempt to so 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 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."751 Yet, in Bishop v. Wood,752 the Court accepted a district court's finding that a policeman held his position "at will" despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez,753 Justice Powell, writing in dissent but using language quite similar to the Rehnquist Arnett language, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principle to impose a ten day suspension.754

More recently, however, 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 virtually any state-created property interest at will.755 The most striking application of this analysis, to date, is found in Logan v. Zimmerman Brush Co..756 In Logan, a state anti-discrimination law required the enforcing agency to convene a fact-finding 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 noted that various older cases had clearly established that causes of action were property, and, in any event, Logan's claim was an entitlement grounded in state law and thus could only be removed "for cause." This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction.757

751 416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at 177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan dissenting).

752 426 U.S. 341 (1976). A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had disagreed with the theory in Arnett. See id. at 350, 353 n.4, 355 (dissenting opinions). The language is ambiguous and appears at different points to adopt both positions. But see id. at 345, 347.

753 419 U.S. 565, 573-74 (1975). See id. at 584, 586-87 (Justice Powell dissenting).

754 419 U.S. at 584, 586-87 (Justice Powell dissenting).

755 Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)).

756 455 U.S. 422 (1982).

757 455 U.S. at 428-33 A different majority of the Court also found an equal protection denial. 455 U.S. 438, 433.

The Liberty Interest.—With respect to liberty interests, the Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the Court has expanded the concept to include various other protected interests, some statutorily created and some not.758 Thus, in Ingraham v. Wright,759 the Court unanimously agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. "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."760

758 These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See "Fundamental Rights (Noneconomic Substantive Due Process)", supra.

759 430 U.S. 651 (1977)

760 430 U.S. at 673. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source of liberty interests for procedural protection. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father, with visitation rights, must be given notice and opportunity to be heard with respect to impending adoption proceedings); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to have custody of his children because his interest in his children warrants deference and protection). See also Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1 (1981); Lassiter v. Department of Social Services, 452 U.S. 18 (1981); Santosky v. Kramer, 455 U.S. 745 (1982).

The Court also appeared to have expanded the notion of "liberty" to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process.761 Thus, in Wisconsin v. Constantineau,762 the Court invalidated a statutory scheme in which persons could be labeled "excessive drinkers," without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual's reputation, honor, and integrity.

But, in Paul v. Davis,763 the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one's reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff's photograph and name on a list of "active shoplifters" circulated to merchants without an opportunity for notice or hearing. But the Court held that "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."764 Thus, unless the government's official defamation has a specific negative effect on an entitlement, such as the denial to "excessive drinkers" of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.*

A number of liberty interest cases which involve statutorily created entitlements involve prisoner rights, and thus are dealt with more extensively in the section on criminal due process. However, they are worth noting here. In Meachum v. Fano,765 the Court held that a state prisoner was not entitled to a fact-finding 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. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required.

761 Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972); Goss v. Lopez, 419 U.S. 565 (1975)

762 400 U.S. 433 (1971).

763 424 U.S. 693 (1976).

764 Here the Court, 424 U.S. at 701-10, distinguished Constantineau as being a "reputation-plus" case. That is, it involved not only the stigmatizing of one posted but it also "deprived the individual of a right previously held under state law - the right to purchase or obtain liquor in common with the rest of the citizenry." 424 U.S. at 708. How the state law positively did this the Court did not explain. But, of course, the reputation-plus concept is now well-settled. See discussion supra. And see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 711-12 (1976). In a subsequent case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9-12 (1978).

* In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 6–7 (2003), holding that the state’s posting on the Internet of accurate information regarding convicted sex offenders did not violate their due process rights, the Court stated that Paul v. Davis “held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest.”

765 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

But in Vitek v. Jones,766 a state statute 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. Interestingly, however, the Vitek Court also held that 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,767 a liberty interest that is separate from a statutory 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.768 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 must be explicit "mandatory language" requiring a particular outcome if substantive predicates are found.769 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.770

766 445 U.S. 480 (1980).

767 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

768 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Jago v. Van Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539 (1974) (due process applies to forfeiture of good-time credits and other positivist granted privileges of prisoners).

769 Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-63 (1989) (prison regulations listing categories of visitors who may be excluded, but not creating a right to have a visitor admitted, contain "substantive predicates" but lack mandatory language).

770 Sandin v. Conner, 515 U.S. 472, 484 (1995) (solitary confinement not atypical "in relation to the ordinary incidents of prison life"). Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship”).

Proceedings in Which Procedural Due Process Need Not Be Observed.—While due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,771 there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it 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 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."772

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.773 On the other hand, if a regulation, sometimes denominated an "order," is of limited application, that is, it affects 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 various factors discussed below.774

771 Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

772 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).

773 United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

774 410 U.S. 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).

One such factor is whether agency action is subject to later judicial scrutiny.775 In one of the initial decisions construing the due process clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector's property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, 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.776

In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. 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.777

It is a violation of the due process clause for a State to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.778 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.

775 "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." Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 246- 47 (1944).

776 Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

777 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

778 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).

The person may be remitted to other actions initiated by him779 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.780 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 held to have been deprived of his rights without due process of law.781

When Process Is Due.—The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.782 The currently prevailing standard is that formulated in Mathews v. Eldridge,783 which concerned termination of Social Security benefits. "Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail."

779 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).

780 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)

781 Saunders v. Shaw, 244 U.S. 317 (1917).

782 "The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss,' . . . and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication." Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894-95 (1961).

783 424 U.S. 319, 335 (1976).

The termination of welfare benefits in Goldberg v. Kelly,784 which could have resulted in a "devastating" loss of food and shelter, had required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.785

Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring pre-deprivation hearings. Newer cases, however, look to the interests of creditors as well. "The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well."786

Thus, Sniadach v. Family Finance Corp.,787 which mandated pre-deprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.788 Fuentes v. Shevin,789 which struck down a replevin statute which authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,790 so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.791 Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor's interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.792

784 397 U.S. 254, 264 (1970).

785 Mathews v. Eldridge, 424 U.S. 319, 339-49 (1976).

786 Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Shevin, 407 U.S. 67, 99-100 (1972), did not repeat it in North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of Di-Chem.

787 395 U.S. 337 (1969)

788 North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. at 605-06, rather emphasizing that Sniadach - Fuentes do require observance of some due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the earlier case).

789 407 U.S. (1972).

790 Fuentes was an extension of the Sniadach principle to all "significant property interests" and thus mandated pre-deprivation hearings. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di-Chem 419 U.S. at 616-19 (Justice Blackmun dissenting); Mitchell, 416 U.S. at 635-36 (1974) (Justice Stewart dissenting).

791 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the Mathews v. Eldridge formula in holding that Connecticut's prejudgment attachment statute, which "fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance," operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991). "[T]he relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections." 501 U.S. at 11.

792 Mitchell v. W.T. Grant Co., 416 U.S. at 615-18 (1974) and at 623 (Justice Powell concurring). And see Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of "no state action," but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in ware-houseman's sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials' joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in "nonclaim" statute).

Similarly, applying the Mathews v. Eldridge standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.793 Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.794 In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.795 In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.796

793 Arnett v. Kennedy, 416 U.S. 134, 170-71 (1974) (Justice Powell concurring), and 416 U.S. at 195-96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979), the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified an interim suspension without a hearing once it established the existence of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. See also FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre-suspension hearing, and with 90-day delay before decision resulting from post-suspension hearing).

794 Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).

795 E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of drivers' license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts).

796 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

In Brock v. Roadway Express, Inc.,797 a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a "whistle-blower" employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee's charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer "in controlling the makeup of its workforce" and that of the employee in not being discharged for whistle-blowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.798

797 481 U.S. 252 (1987). Justice Marshall's plurality opinion was joined by Justices Blackmun, Powell, and O'Connor; Chief Justice Rehnquist and Justice Scalia joined Justice White's opinion taking a somewhat narrower view of due process requirements but supporting the plurality's general approach. Justices Brennan and Stevens would have required confrontation and cross-examination.

798 For analysis of the case's implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 SUP. CT. REV. 157.

In another respect, the balancing standard of Mathews has resulted in a State having wider flexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a State affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.799 Thus, the Court, in passing on the infliction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i.e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.800 The Court did not, however, inquire about the availability of judicial remedies for such violations in the State in which the case arose.801 A delay in processing a claim for recovery of money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,40 a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected — the temporary loss of the use of the money — could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.

The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,802 and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is "the state system itself that destroys a complainant's property interest."803 While the Court did briefly entertain the theory that a negligent action (i.e. non-willful) by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,804 the Court subsequently overruled this holding, stating that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."805

799 See, e.g. Lujan v. G & G Fire Sprinklers, Inc, 523 U.S. 189 (2001) (breach of contract suit against state contractor who withheld payment to subcontractor based on state agency determination of noncompliance with Labor Code sufficient for due process purposes).

800 Ingraham v. Wright, 430 U.S. 651, 680-82 (1977).

801 Ingraham v. Wright, 430 U.S. 651, 680-82 (1977). In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19-22 (1987) involving cutoff of utility service for non-payment of bills, the Court rejected the argument that common-law remedies were sufficient to obviate the pre-termination hearing requirement.

40 538 U.S. 715 (2003).

802 Logan v. Zimmerman Brush Co., 455 U.S. at 435-36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inflicted by a state procedure would be inadequate. "That is particularly true where, as here, the State's only post-termination process comes in the form of an independent tort action. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole." 455 U.S. 422, 436-37.

803 455 U.S. at 436

804 More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), held that the loss of a prisoner's mail-ordered goods through the negligence of prison officials constituted a deprivation of property, but that the State's post-deprivation tort-claims procedure afforded adequate due process. When a state officer or employee acts negligently, the Court recognized, there is no way that the State can provide a pre-termination hearing; the real question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the due process clause is satisfied by the provision of a judicial remedy which the claimant must initiate. 451 U.S. at 541, 543-44. It should be noted that Parratt was a property loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not be adequate process. See Ingraham v. Wright, 430 U.S. at 680-82.

805 Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials). Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. § 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor §1983 provides a federal remedy.

In "rare and extraordinary situations," where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.806 Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,807 collection of governmental revenues,808 and the seizure of enemy property in wartime.809 Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the five-to-four decision is unclear.810 On the one hand, the Court was ambivalent about a right-privilege distinction;811 on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire's other premises—with the Government's interest in conducting a high-security program.812

806 Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt v. Taylor, 451 U.S. 527, 538-40 (1981). Of course, one may waive his due process rights, though as with other constitutional rights, the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94-96 (1972).

807 North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950). See also Fahey v. Mallonee, 332 U.S. 245 (1948). Cf. Mackey v. Montrym, 443 U.S. 1, 17-18 (1979).

808 Phillips v. Commissioner, 283 U.S. 589, 597 (1931).

809 Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921).

810 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961).

811 367 U.S. at 894, 895, 896 (1961).

812 367 U.S. at 896-98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and 416 U.S. at 181-183 (Justice White concurring in part and dissenting in part).

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