From
ADVOCATZ President
Betsy Combier:
In my opinion, when any Attorney tells a client or convinces a person to give up on going through a 3020-a arbitration because he/she "will be terminated" or "lose his/her pension", as we hear so often from NYSUT and even some private attorneys, the due process rights of that individual is being denied to him/her.
How does an Attorney/advocate/representative know that the person charged will be terminated? Before that final judgment there is always mediation, settlement, negotiation.
I believe that most attorneys do not want to go through a 3020-a because it is time consuming, and a drain on time and money. Certainly, it is a lot easier to "convince" someone to give up, than to fight.
While I and the private attorneys that I work with do not go for the argument that someone will be terminated, there are never any guarantees. But we are willing to settle for a withdrawal of charges if the teacher wants to not pursue a full hearing. We have saved the jobs of more than 40 teachers who have hired us to represent them.
But to demand that a person give up his/her right to argue against false charges that will forever damage his/her reputation and future earnings? No thank you.
Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person.
Henry J. Friendly wrote about a fair hearing in his excellent essay,
Some Kind of Hearing. Yet this is not what the DOE wants to provide at a 3020-a, and that is why you win in your defense. You must add the context and motive to the charges because the DOE will not do that. For example, the DOE attorney may obtain testimony that on X day you, a teacher, did not hand in a lesson plan, and suddenly you are charged with incompetency, conduct unbecoming a teacher, etc. There is not other evidence given. But let's say you were in the hospital, or the day you were supposed to hand in the lesson plan, you were absent? or, you did hand it in, and they want to say you didn't? Your defense and proof are what matters.
It seems to me that the DOE always presents the same case, no matter what the specifications, so the defense of innocence and giving testimony on motive/context becomes
the key to winning. Of course, it also seems to me that ADVOCATZ is the only entity which cares about the process that is "due".
Here is a definition I like from Cornell University Law School Legal Information Institute:
Due process
Introduction
The Constitution states
only one command twice. The Fifth Amendment says to the federal government that no one shall be
"deprived of life, liberty or property without due process of law."
The Fourteenth Amendment,
ratified in 1868, uses the same eleven words, called the Due Process Clause, to
describe a legal obligation of all states. These words have as their central
promise an assurance that all levels of American government must operate within
the law ("legality") and provide fair procedures. Most of this essay
concerns that promise. We should briefly note, however, three other uses these
words have had in American constitutional law.
Incorporation
The Fifth Amendment's
reference to “due process” is only one of many promises of protection the Bill
of Rights gives citizens against the federal government. Originally these
promises had no application at all
against the states. Did the Fourteenth Amendment change that? In the middle of
the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most
of the important elements of the Bill of Rights and made them applicable to the
states. These decisions almost obliterated any difference between the Bill of
Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is "incorporated"
in the "due process" requirement of the Fourteenth Amendment, state
and federal obligations are exactly the same. The right to a jury trial, to
take just one example, means the same in state and federal courts; there are no
differences about the number of jurors required, whether they have to be
unanimous in their verdicts, and so forth.
Equal Protection of the
Laws.
If the courts stretched
Fourteenth Amendment “due process” to apply the
Bill of Rights to the states, they stretched Fifth Amendment “due process” to
require the federal government to afford equal protection of the laws. The
Equal Protection Clause of the Fourteenth Amendment forbids the states from
establishing segregated schools or otherwise discriminating invidiously against
some of their citizens. There is no equal protection clause in the Bill of
Rights. In a case involving segregation in the schools ofWashington, D.C., which as the nation's capital
is a federal enclave governed by federal law, the Supreme Court found that the
Due Process Clause operates against the federal government just as the Equal
Protection Clause does against the states.
Substantive due process
The words “due process”
suggest a concern with procedure, and that is how the Due Process Clause is
usually understood. We have just seen, however, that the clause has been taken
as a kind of proxy for other rights. In those cases, the rights were actually
expressed somewhere in the Constitution, but only as rights against federal (or
state) action. What about rights the Constitution does not mention — “unnamed
rights,” as Charles Black calls them, like the right to work in an ordinary
kind of job, or to marry, or to raise one's children as a parent? The dominant
constitutional controversy of the first third of this century, which still
echoes in the arguments about abortion and other “privacy” issues like sexual
preference, was about an idea called “substantive due process.” The question
was whether "due process of law" might put substantive limits on what
legislatures could enact, as well as require procedures of judges and
administrators. Thus, in 1905, the Supreme Court found unconstitutional a New York
law regulating the working hours of bakers, because it thought the public
benefit of the law did not justify depriving the bakers of their right to work
under whatever terms they liked. For thirty years, conservative judges
sometimes used this idea to find legislative judgments about social or economic programs invalid, retarding the emergence of social welfare legislation.
In the late 1930's, after years of sharp criticism, the substantive due process
approach was repudiated for "economic regulation." Many think the
idea is still vital as a barrier to legislation curbing other individual
liberties.
The promise of legality
and fair procedure
While the text of the due
process clause is extremely general, the fact that it appears twice makes clear
that it states a central proposition. Historically, the clause reflects the Magna Carta of Great Britain, King John's thirteenth century promise to his
noblemen that he would act only in accordance with law (“legality”) and that
all would receive the ordinary processes (procedures) of law. It also echoes
that country's Seventeenth Century struggles for political and legal
regularity, and the American colonies' strong insistence during the
pre-Revolutionary period on observance of regular legal order. The requirement
that government function in accordance with law is, in itself, ample basis for
understanding the stress given these words. A commitment to legality is at the
heart of all advanced legal systems, and the Due Process Clause often thought
to embody that commitment.
The clause also promises
that before depriving a citizen of life, liberty or property, government must
follow fair procedures. Thus, it is not always enough for the government just
to act in accordance with whatever law there may happen to be. Citizens may
also be entitled to have the government observe or offer fair procedures,
whether or not those procedures have been provided for in the law on the basis
of which it is acting. Action denying the process that is “due” would be
unconstitutional. Suppose, for example, state law gives students a right to a
public education, but doesn't say anything about discipline. Before the state
could take that right away from a student, by expelling her for misbehavior, it
would have to provide fair procedures, i.e. “due process.”
How can we know whether
process is due (what counts as a “deprivation” of “life, liberty or property”),
when it is due, and what procedures have to be followed (what process is “due”
in those cases)? If "due process" refers chiefly to procedural
subjects, it says very little about these questions. Courts unwilling just to
accept legislative judgments have to find answers somewhere else. The Supreme
Court's struggles over how to find these answers echo its interpretational
controversies over the years, and reflect the changes in the general nature of
the relationship between citizens and government.
In the Nineteenth Century
government was relatively simple, and its actions relatively limited. Most of
the time it sought to deprive its citizens of life, liberty or property it did
so through criminal law, for which the Bill of Rights explicitly stated quite a
few procedures that had to be followed (like the right to a jury trial) —
rights that were well understood by lawyers and courts operating in the long
traditions of English common law. Occasionally it might act in other ways, for
example in assessing taxes. In two decisions at the very beginning of the
Twentieth Century the Supreme Court held that only politics (the citizen's
“power, immediate or remote, over those who make the rule”) controlled the
state's action setting the level of taxes, but if the dispute was about a
taxpayer's individual liability, not a general question, the taxpayer had a
right to some kind of a hearing (“the right to support his allegations by
arguments however brief and, if need be, by proof however informal”). This left
the state a lot of room to say what procedures it would provide, but did not
permit it to deny them altogether. Another early case suggested flexibility
about the timing and nature of a required hearing. When a health inspector
decided some chickens in cold storage had rotted, he didn't have to hold a
hearing before he could seize and destroy them, so they could not be sold; but
the owner of the chickens could sue the inspector afterwards, and if it
convinced the jury that the chickens were not rotten, make the inspector repay
their value.
Whether process is due
The cases just mentioned
established one important distinction: the Constitution does not require “due
process” for establishing laws; the provision applies when the state acts
against individuals “in each case upon individual grounds” — when some characteristic
unique to the citizen is involved. Of course there may be a lot of citizens
affected; the issue is whether assessing the effect depends “in each case upon
individual grounds.” Thus, the due process clause doesn't govern how Ohio sets
the rules for student discipline in its high schools; but it does govern how
Ohio applies those rules to individual students who are thought to have
violated them — even if in some cases (say, cheating on a state-wide
examination) a large number of students were allegedly involved.
Even when an individual
is unmistakably acted against on individual grounds, there can be a question
whether the state has “deprive[d]” her of “life, liberty or property.” The
first thing to notice here is that there must be state action. The Due Process
Clause doesn't apply to a private school taking discipline against one of its
students (although that school will probably want to follow similar
principles).
Whether state action
against an individual was a deprivation of life, liberty or property was
initially resolved by a distinction between “rights” and “privileges.” Process
was due if rights were involved, but the state could act as it pleased in
relation to privileges. But as modern society developed, it became harder to
tell the two apart. Was a driver's license a “right” or a “privilege”? How
about a government job? Enrolment on welfare? An initial reaction to the
increasing dependence of citizens on their government was to look at the
seriousness of the impact of government action on an individual, without
asking, as such, about the nature of the relationship affected. Process was due
before the government could take an action that affected a citizen in a grave
way.
In the early 1970's,
however, this gave way to an analysis that accepted as a threshold question
whether “life, liberty or property” was directly affected by state action, but
that required these concepts to be very broadly interpreted. Two Supreme Court
cases involved teachers at state colleges whose contracts of employment had not
been renewed as they expected, because of some political positions they had
taken. Were they entitled to a hearing before they could be treated in this
way? Previously, a state job was a “privilege” and the answer to this question
was an emphatic “No!” Now, the Court decided that whether either of the two
teachers had "property" would depend in each instance on whether
persons in their position, under state law, held some form of tenure. One
teacher had just been on a short term contract; because he served "at
will" — without any state law claim or expectation to continuation — he
had no “entitlement” once his contract expired. The other teacher worked under
a longer-term arrangement that school officials seemed to have encouraged him
to regard as a continuing one. This could create an “entitlement,” the Court
said; the expectation need not be based on a statute, and an established custom
of treating instructors who had taught for X years as having tenure could be
shown. While, thus, some law-based relationship or expectation of continuation
had to be shown before a federal court would say that process was
"due," constitutional “property” was no longer just what the common
law called “property”; it now included any legal relationship with the state
that state law regarded as in some sense an “entitlement” of the citizen.
Licenses, government jobs protected by civil service, or places on the welfare
rolls were all defined by state laws as relations the citizen was entitled to
keep until there was some reason to take them away, and therefore process was
due before they could be taken away. This restated the formal “right/privilege”
idea, but did so in a way that recognized the new dependency of citizens on
relations with government, the “new property” as one scholar influentially
called it.
The application of this
threshold test for whether process is due has presented three problems. The
first is called the "positivist trap." Since whether one has an
entitlement depends on the prescriptions of state law, legislatures may be able
to define important relationships — ones on which citizens in fact come to
depend — in ways that preclude the conclusion that an "entitlement"
is present. Recent "welfare reform" legislation has been explicit that
one its purposes is to end any idea that welfare is an "entitlement";
although largely directed to the question how long one may remain on welfare,
the rhetoric seems also aimed at the “new property” idea.
We are not discussing “liberty,” but you can see that similar
problems will arise, perhaps even more importantly. What decisions affecting
prisoners involve their “liberty” has been a particularly aggravating problem.
The courts do not want to engage in close supervision of prison issues, but at
the same time must recognize the plain command of the language of the clause.
Moreover, if the
provisions of a state law define not only an entitlement but also the
procedures by which that relationship can be ended or altered, how can a court
separate the two? Mustn't the citizen be prepared to accept the "bitter
with the sweet"? This issue was presented when civil servants, enjoying
tenure under statutes that provided for the procedures to be followed for
removal, challenged the constitutionality of aspects of the removal procedures.
The Court rejected the "bitter with the sweet" reasoning, but not
without indicating a high level of respect for legislative judgments about what
procedures would be fair.
The second problem might
be described as a problem about what is a "deprivation." A series of
cases involving state harm to citizens led the Court to an almost inexplicable
series of "due process" results. For example, an early case held that
a state could not post a picture of a person naming him as an habitual drunkard
without first providing a chance for a hearing; the posting made it unlawful
for that person to be served alcoholic beverages in a bar. Yet when a city
circulated the photograph of a person recently arrested (but not convicted) for
petty theft under the heading "Active Shoplifters," causing enormous
damage to his reputation, the failure first to provide a hearing was not
objectionable. Another case established that school officials could not suspend
a student for ten days without first giving him some kind of hearing; attendance
at public school was an "entitlement." Yet a teacher who physically
punished a student so severely that it kept him out of school for several days
(but who did not formally exclude him from school) had not deprived her student
of liberty or property without due process of law. Where liability was denied,
perhaps one could say the challenged official acts did not change the victim's
legal status. It was still lawful to shop, or to come to school if health
permitted. Yet the harms seem if anything worse than in the cases where
procedure was required. Some have thought it important that in these cases (and
others), state law appeared to provide a remedy after the fact; the victim
could sue the official for slander or for assault. To find "due process"
violations in such matters would involve the federal courts in what had
traditionally been the business of state law. As a dissenter in the corporal
punishment case observed, these considerations appear to explain the results in
a technical sense. Yet it seems fair to characterize the justice of the
opposing results in these cases as deeply questionable.
Finally, what about cases
of potential entitlements for which a citizen is applying, and has not
qualified? Does a statute saying that every citizen with characteristics A, B
and C shall receive stated benefits or earn a driver's license create an
"entitlement," so that "due process" constrains the
application procedures the state can choose? Once qualified, the citizen could
not be deprived of her "entitlement" without due process. Yet the
Supreme Court has not said directly whether the same judgment applies at the
application stage, and some Justices apparently believe that it does not. On
the one hand, it can be said that the law is always more solicitous of
established relationships than expectations. However, the
"entitlement" analysis suffers some embarrassment in this argument.
The claim of the citizen to state legality seems the same whether he has
wrongly been denied access to an entitlement he has not yet enjoyed or has been
terminated in one previously recognized.
When process is due
In its early decisions,
like the rotten chicken case, the Supreme Court seemed repeatedly to indicate
that, where only property rights were at stake (and particularly if there was
some demonstrable urgency for public action) necessary hearings could be
postponed to follow provisional, even irreversible, government action. This
presumption changed in 1970 with the decision in Goldberg v. Kelly, a case
arising out of a state-administered welfare program. New York was seeking to
terminate the enrolment of Kelly and others in its welfare program. It conceded
that a federal statute required it to provide a full hearing before a hearing
officer before finally terminating their enrolment and even — anticipating the
new property, “entitlement” approach — that the Due Process Clause required
such a hearing. At issue in the case was only its effort to suspend payments
pending that full and formal hearing, a question in effect of timing. For this
limited purpose New York employed a more informal process. It was willing to
give persons like Mrs. Kelly opportunities to confer with responsible social
workers and to submit written views before suspension, but it gave no
"hearing" in the judicial sense before the suspension was put into
effect.
The tremendous need
facing a person dependent on welfare, even over a few weeks or months,
persuaded the Goldberg Court that a suspension is in itself a deprivation, one
that requires a hearing before it could be put into effect. Except for the
situations mentioned earlier, where the courts have thought that a tort action
could be an adequate remedy against officials who cause harm without affecting
legal status, Goldberg in effect created a presumption that hearings must
come first. The "hearing first" aspect of its holding spread rapidly
through a variety of civil judicial remedies — for example, limiting
traditional summary procedures lenders had used to repossess cars bought on
credit, when payments ceased. This aspect seems reasonably stable in today's
law.
It is interesting that
these cases have never made what might seem an obvious comparison. In criminal
law, the state often takes very damaging actions against people pending trial,
with only limited procedural safeguards. Arrest and search require, at most,
that police satisfy a judicial officer, a magistrate, that they have reasonable
grounds to act; the person they are going to act against has no right to be
present at the time. Detention pending trial requires no more than a showing of
“probable cause,” and the person who is going to be detained has no right to
present witnesses or ask questions of the persons who present evidence for the
state. The result may be time in jail, disrupted families, terrible damage to
reputation, the loss of a job. The inquiry New York made about Mrs. Kelley
seems easily comparable to these criminal law inquiries, but that comparison
was never made.
What procedures are due
Probably the hardest of
the analytic questions arising under the procedural aspect of “due process” is
this one, just what procedures are constitutionally due. This is a question
that has to be answered for criminal trials (where the Bill of Rights provides
many explicit answers), for civil trials (where the long history of English
practice provides some landmarks), and for administrative proceedings, which
did not appear on the legal landscape until a century or so after the Due
Process Clause was first adopted. Because there are the fewest landmarks, the
administrative cases present the hardest issues, and these are the ones we will
discuss.
As we have seen, the
earliest expressions were very indefinite. The state had to provide “some kind
of a hearing,” giving the citizen “the right to support his allegations by
arguments however brief and, if need be, by proof however informal.” The battle
over incorporation, however, made this seem a very subjective inquiry, and the
reaction to the excesses of substantive due process made that subjectivity
suspect. Judicially defining the liberties "indispensable to the dignity
and happiness of a free man" case by case seemed a hazardous enterprise.
At the same time, developments in the 1950's underscored the importance of fair
administrative procedures. This was the time of McCarthyism and the
red-baiting that went with it. Rumors generated by faceless informers were
widely used to deprive government employees of their jobs because of doubts
raised about their loyalty and security. The resulting inquiries often left the
employees with their honor challenged but no realistic possibility of response.
They emphasized the value, in an administrative context, of procedural
protections long associated with Anglo-American criminal trials: the right to
have the assistance of counsel; the right to know one's accuser and the
evidence against one; the right to confront and cross-examine that person; the
right to have decision based solely upon a record generated in open
proceedings; as well as the right to present argument and evidence on one's own
behalf.
Yet, for each case that
seemed to demand a detailed procedural prescription, another plainly required
flexibility. A legislative investigation of alleged communistic activities
could not be undertaken without respecting witness' claims to procedural
safeguards; but the Court would not burden a legislative investigation into
civil rights issues with rigid procedural requirements, although the investigation's
conclusions might harm the reputation of witnesses before it in some parts of
the country. An aeronautic engineer could not be threatened with loss of access
to military secrets on which his profession depended, on the basis of anonymous
accusations about his loyalty, without the opportunity to confront the
information and his accuser; but a cook on a military installation threatened
with loss of access to the installation (and hence that particular job),
apparently on the basis of undisclosed concerns about her security status, had
in all the circumstances no similar claim. The Court during this period seemed
to agree on little, save the proposition that what the due process clause
required could only be determined on the basis of all the circumstances of a
given case -- a view not far distant from "the very essence of a scheme of
ordered liberty.”
When the Goldberg Court
came to answer the “what” question, it held that the state must provide a
hearing before an impartial judicial officer, the right to an attorney's help,
the right to present evidence and argument orally, the chance to examine all
materials that would be relied on or to confront and cross-examine adverse
witnesses, or a decision limited to the record thus made and explained in an
opinion. The Court's basis for this elaborate holding has never been clear,
although it seems to have some roots in the incorporation debates. Various
prior cases were cited for the different ingredients provided for in the naval
engineer's case (but not the cook's), for example, on the question of
cross-examination — but without attention to the possibility the requirements
of due process would vary from setting to setting. The opinion was written as
if all would agree that the procedures it was discussing were generally
required whenever procedure was “due.” Yet, overall, the collection of
procedures it required was atypically demanding even of final government
administrative determinations on issues of great importance. A survey of forty
federal programs made a few years after Goldberg, for example, found only one
other program (also welfare-oriented) in which all the Goldberg rights were
respected. For the substantial majority, fewer than half were provided; only
notice, the assurance of some degree of impartiality, and an explanation of the
basis of decision were observed with any degree of universality.
Perhaps for this reason,
an outpouring of cases after Goldberg's due process “explosion” quickly
persuaded the Supreme Court to a more discriminating approach. Process was
“due” to the student suspended for ten days, as to the doctor deprived of his
license to practice medicine or the person accused of being a security risk;
yet the difference in seriousness of the outcomes, of the charges, and of the
institutions involved made it clear there could be no list of procedures that
were always “due.” What the Constitution required would inevitably be dependent
on the situation. What process is “due” is a question to which there cannot be
a single answer.
A successor case to
Goldberg, Mathews v. Eldridge, tried
instead to define a method by which due process questions could be successfully
presented by lawyers and answered by courts. The approach it defined has
remained the Court's preferred method for resolving questions over what process
is due (although not one that the Court always refers to; sometimes it simply
invokes tradition or some other basis for understanding). Mathews arose in a
context much like Goldberg; Mr. Eldridge had been receiving disability benefits
under a federally supported scheme. Responsible officials came to believe, on
the basis of information he had provided and physicians' reports, that he was no
longer disabled. They then notified him that they intended to terminate his
benefits. Only written procedures were available before the termination was
made provisionally effective. Eldridge was entitled to a full oral hearing at a
later date, and would have received full benefits for the interim period if he
prevailed. His argument, like Kelly's in Goldberg v. Kelly, was that even
suspending payments to him pending the full hearing was a deprivation of a
property interest that could not be effected without the use of the procedures
specified in Goldberg.
Where Goldberg had listed
procedures that had to be followed, Mathews attempted to define how judges
should ask about constitutionally required procedures. The Court said three
factors had to be analyzed:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the 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 requirement would entail.
Using these factors, the
Court first found the private interest here less significant than in Goldberg.
A person who is arguably disabled but provisionally denied disability benefits,
it said, is more likely to be able to find other "potential sources of
temporary income" than a person who is arguably impoverished but provisionally
denied welfare assistance. Respecting the second, it found the risk of error in
using written procedures for the initial judgment to be low, and unlikely to be
significantly reduced by adding oral or confrontational procedures of the
Goldberg variety. It reasoned that disputes over eligibility for disability
insurance typically concern one's medical condition, which could be decided, at
least provisionally, on the basis of documentary submissions; it was impressed
that Eldridge had full access to the agency's files, and the opportunity to
submit in writing any further material he wished. Finally, the Court now
attached more importance than the Goldberg Court had to the government's claims
for efficiency. In particular, the Court assumed (as the Goldberg Court had
not) that "resources available for any particular program of social
welfare are not unlimited." Thus additional administrative costs for
suspension hearings and payments while those hearings were awaiting resolution
to persons ultimately found undeserving of benefits would subtract from the
amounts available to pay benefits for those undoubtedly eligible to participate
in the program. The Court also gave some weight to the "good-faith
judgments" of the plan administrators what appropriate consideration of
the claims of applicants would entail.
Matthews v. Eldridge thus
reorients the inquiry in a number of important respects. First, it emphasizes
the variability of procedural requirements. Rather than create a standard list
of procedures that, en gross, constitute the procedure that is "due,"
the opinion emphasizes that each setting or program invites its own assessment.
About the only general statement that can be made is that persons holding
interests protected by the due process clause are entitled to "some kind
of hearing." Just what the elements of that hearing might be, however,
depends on the concrete circumstances of the particular program at issue.
Second, that assessment is to be made both concretely, and in a holistic
manner. It is not a matter of approving this or that particular element of a
procedural matrix in isolation, but of assessing the suitability of the
ensemble in context.
Third, and particularly
important in its implications for litigation seeking procedural change, the
assessment is to be made at the level of program operation, rather than in
terms of the particular needs of the particular litigants involved in the
matter before the Court. Cases that are pressed to appellate courts often are
characterized by individual facts that make an unusually strong appeal for
proceduralization. Indeed, one can often say that they are chosen for that
appeal by the lawyers, when the lawsuit is supported by one of the many
American organizations that seeks to use the courts to help establish their
view of sound social policy. Justice William Brennan, the author of Goldberg,
wrote about it afterwards in just these terms, and dissented from Mathews in a
manner that again drew strongly on the plight of the particular individual
threatened with loss of welfare in that case, as distinct from the general
situation of disability benefit recipients and the general operation of the
program, on which the majority had focused. The approach required by the
Mathews majority seems more likely to preserve than to endanger existing
procedural arrangements. Finally, and to similar effect, the second of the
stated tests places on the party challenging the existing procedures the burden
not only of demonstrating their insufficiency, but also of showing that some
specific substitute or additional procedure will work a concrete improvement
justifying its additional cost. Thus, it is inadequate merely to criticize. The
litigant claiming procedural insufficiency must be prepared with a substitute
program that can itself be justified.
The Mathews approach is
most successful when it is viewed as a set of instructions to attorneys
involved in litigation concerning procedural issues. Attorneys now know how to
make a persuasive showing on a procedural "due process" claim, and
the probable effect of the approach is to discourage litigation drawing its
motive force from the narrow (even if compelling) circumstances of a particular
individual's position. The hard problem for the courts in the Mathews approach,
which may be unavoidable, is suggested by the absence of fixed doctrine about
the content of "due process" and by the very breadth of the inquiry
required to establish its demands in a particular context. A judge has few
reference points to begin with, and must decide on the basis of considerations
(such as the nature of a government program or the probable impact of a
procedural requirement) that are very hard to develop in a trial. A
not-at-all-surprising result is to encourage judges to accept resolution of
procedural issues by legislatures or others better placed to make these complex
yet general assessments.
Two examples may
illustrate the problems judges face. The first arose when one of the federal
circuit courts of appeal had to decide a dispute about the procedures to be
followed in determining certain low-value claims under the national medical
insurance scheme. Initially, the court ruled with confidence that access to
some kind of oral procedure was required under some circumstances, for no
reported case had ever approved a completely written procedure for a setting in
which process was "due." Yet this reference point arose outside the
Mathews decision as such; and when the case returned to the court at a later
stage, it became clear that the Mathews inquiry did not answer for the court
just how tightly access to an oral procedure could be controlled and just how
informal that procedure could be. For example, would provision for discussions
over the telephone suffice? The detailed outcome of the lawsuit seemed much
more likely to be the product of negotiations between the litigants than to be
the result of judicial decision.
The second example
involved a statute that, by very severely restricting the fees that could be
paid, had the effect of denying veterans access to attorneys when they made
claims under veterans benefits statutes. The Court was closely attentive to the
Mathews formulation, and relied on statistics about the usual outcome of
veterans' claims to establish that their need for attorneys' assistance was not
high. Most veterans prevailed; veterans' organizations were available to
provide substitute representation that seemed effective; and in the few cases
in which lawyers had appeared, presumably without fee, veterans were not
notably more successful than the general run. Yet these statistics cloaked what
several of the Justices regarded as a real need for lawyers' assistance in a
smaller group of much more complex cases. This was a focus the attorneys for
the veterans groups had not developed. Some of the Justices thought that in a
well-developed case the Mathews inquiry might demonstrate that attorneys help
was constitutionally required in that sub-group of cases; others would have
decided that, like the element of orality, access to an attorney was a
necessary element of the process "due," one that could never be
denied. What was apparent to both groups of Justices (together, a majority of
the Court) was that the Mathews inquiry in this case was distorted by the great
number of "easy cases," for which the desired procedural change would
make little difference.
It follows from the
preceding discussion that one cannot expect to list the elements of
"required procedures" under American law. In the case involving a
ten-day suspension from public school, a chance to tell the school principal
(someone other than the complaining teacher) one's own side of the story was
sufficient. Suspension of welfare payments may still be held to require all the
elements specified in Goldberg, and actual termination of those payments,
somewhat more. Nonetheless, an analysis made by the late Judge Henry Friendly
in his well-regarded article, "Some Kind of Hearing," generated a
list that remains highly influential, as to both content and relative priority:
- An unbiased tribunal.
- Notice of the proposed action and
the grounds asserted for it.
- Opportunity to present reasons why
the proposed action should not be taken.
- The right to present evidence,
including the right to call witnesses.
- The right to know opposing
evidence.
- The right to cross-examine adverse
witnesses.
- A decision based exclusively on
the evidence presented.
- Opportunity to be represented by
counsel.
- Requirement that the tribunal
prepare a record of the evidence presented.
- Requirement that the tribunal
prepare written findings of fact and reasons for its decision.
Again, these are simply
the kinds of procedures that might be claimed in a "due process"
argument, roughly in order of their perceived importance, and not a list of
procedures that will in fact be required.
The original text of this
article was written and submitted by Peter Strauss
