Adaptable due process.

• Author: Parkin, Jason

The requirements of procedural due process must adapt to our constantly changing world. Over thirty years have passed since the Supreme Court in Goldberg v. Kelly and Mathews v. Eldridge adopted what appears to be a dynamic, fact-intensive approach to determining the procedures required by the Due Process Clause. Federal, state, and local government agencies responded by establishing new procedural safeguards, many of which are virtually identical to those in use today. Yet, for public benefits programs such as welfare, the intervening decades have brought striking changes. The 1996 federal welfare law created new and powerful incentives to trim the rolls. Work requirements increased the proportion of recipients holding jobs, forcing many to choose between forgoing their due process rights and jeopardizing their employment by missing work to attend a hearing. Technological advances enabled welfare agencies to cut off benefits based on automated eligibility determinations that are difficult for recipients to challenge. Cuts in funding for legal services made the prospect of legal representation at fair hearings remote.

These new facts and circumstances undermine the effectiveness of existing procedures and may require reweighing the Mathews factors to determine what process is due to welfare recipients. Such changes are not unique to welfare; the facts and circumstances relevant to many of the procedural safeguards established since the due process revolution will evolve in the years to come, if they have not already. Although the Supreme Court has not addressed whether or how existing procedures should be adapted to such changes, adapting the demands of due process to new facts and circumstances is faithful to constitutional doctrine and necessary to ensure that existing procedures continue to provide due process of law. It also provides an opportunity to reinvigorate a conversation about procedural justice that went silent many years ago.

INTRODUCTION I. FROM REVOLUTION TO STAGNATION: GOLDBERG, MATHEWS, AND THE RIGHT TO A FAIR HEARING A. Goldberg v. Kelly and Mathews v. Eldridge B. Implementation of the Due Process Revolution and the Right to a Fair Hearing C. Praise and Criticism of the Right to a Fair Hearing D. Doctrinal Stability, Procedural Ossification, and Critical Silence II. POST-GOLDBERG CHANGES TO THE FACTS AND CIRCUMSTANCES OF WELFARE PROGRAMS AND WELFARE RECIPIENTS A. New Incentives to Terminate Welfare Benefits 1. Changes in Welfare Funding Create New Incentives to Terminate Welfare Benefits 2. Federal Work Requirements Create New Incentives to Terminate Welfare Benefits 3. Opportunities for Privatization Create New Incentives to Terminate Welfare Benefits B. New Circumstances Facing Welfare Recipients 1. Work Requirements Undermine the Right to a Fair Hearing 2. Reduced Access to Legal Services Undermines the Right to a Fair Hearing C. New Technology D. New Facts and Circumstances Create Needs for Additional Procedural Protections III. ADAPTABLE DUE PROCESS: HOW DUE PROCESS CAN RESPOND TO CHANGING FACTS AND CIRCUMSTANCES A. Adaptation and Due Process Doctrine B. Identifying Forms of Additional or Substitute Procedural Safeguards 1. Pre-Fair Hearing Procedures 2. Transparency Regarding Automated Determinations 3. Flexible Scheduling of Fair Hearings 4. Procedures That Are Accessible to Pro Se Recipients C. Reckoning with the Limits of Procedural Due Process CONCLUSION INTRODUCTION

Will due process keep up with our rapidly changing world? Can procedures that satisfied due process at one point in time become unconstitutional when the facts and circumstances change? The answer would seem to be yes. As the Supreme Court has emphasized in case after case, "due process is flexible and calls for such procedural protections as the particular situation demands." (1) Yet, in the thirty-five years since adopting a fact-intensive balancing approach to procedural due process in Mathews v. Eldridge, (2) the Court has not assessed whether changed circumstances can render unconstitutional a set of procedural protections that it previously held to satisfy the dictates of due process.

Whether the Mathews approach can account for changes over time is not a mere footnote to the due process guarantee contained in the Constitution's Fifth and Fourteenth Amendments. (3) The world has changed in ways unimaginable to the judges, government officials, and advocates responsible for shaping the procedural protections currently in place, and the future is certain to bring changes of unforeseeable variety and magnitude. Unless existing procedural safeguards are adapted to whatever changes the future will bring, individuals facing governmental deprivations will be threatened with violations of their right to due process of law.

An example spanning twenty-three years, three federal lawsuits, and the evolution of one state's debt collection procedures reveals what can be at stake when courts consider the adaptability of due process:

In July 1983, Cynthia McCahey, a mother of three children and a recipient of welfare benefits, discovered that her checking account had been frozen pursuant to New York's debt collection procedures. (4) McCahey's account was frozen even though it contained only her welfare benefits, which state law exempted from seizure by debt collectors. (5) Left with only post-seizure remedies, McCahey was not able to regain access to her account until four-and-a-half months had passed. (6) During that time, "she fell behind in her rent and utility payments" and "skimped on food and clothing" for her family. (7)

McCahey brought suit in federal court arguing that New York's debt collection procedures violated due process because they lacked pre-seizure procedural protections. The case reached the Second Circuit, which applied the Mathews balancing test to the freezing of bank accounts that contained only money exempt from seizure and concluded that New York's procedures struck "a fair balance between the competing interests" and therefore satisfied due process. (8) The pre-seizure process sought by McCahey was not mandated by due process, the court explained, because of the risk that debtors would conceal assets. (9) As a result of the McCahey decision, recipients of subsistence benefits were left with no choice but to wait until their money was seized before trying to reclaim it, even though state law exempted the funds from ever being seized in the first place.

Seventeen years later, on October 27, 2000, Bernie Huggins's bank account was frozen pursuant to the same debt collection procedures held to be constitutional in McCahey. (10) The only funds in Huggins's account were his monthly Social Security disability benefits, (11) which, like McCahey's welfare benefits, were exempt from seizure. (12) Huggins brought a federal lawsuit claiming that New York's procedures violated due process. Not surprisingly, the defendants immediately moved to dismiss the case, arguing that McCahey controlled and that Huggins's due process claim failed as a matter of law. (13)

Huggins contended that McCahey was not dispositive because the facts and circumstances had changed in ways that altered the Mathews balancing undertaken by the Second Circuit in 1985. (14) Unlike the paper welfare checks deposited by McCahey, Huggins's benefits were deposited directly into his bank account and electronically tagged in a manner that clearly identified the funds as disability benefits. (15) According to Huggins, this shift tipped the balance in favor of an additional procedural safeguard: requiring the bank to determine whether an account contained electronically deposited exempt benefits before freezing it. (16) Tracing the source of funds in a bank account would have been overly burdensome in 1985, but Huggins argued that the advent of direct deposit enabled banks to quickly and easily determine if an account contained only exempt money.

The district court refused to reevaluate the Mathews factors in light of the changed circumstances. (17) Although it acknowledged that Huggins raised "valid concerns about the advisability" of the challenged procedures and that the Second Circuit "may be inclined to reconsider" McCahey, the court concluded that "McCahey is binding authority, and I am obliged to apply that authority." (18) Huggins appealed to the Second Circuit, but he died before oral argument and the case was dismissed on August 18, 2003. (19)

The issue did not stay out of the courts for long. On November 19, 2003, Dennis Mayers brought another challenge to the law, making virtually the same argument as Huggins. (20) Mayers, who was later joined by two other plaintiffs, (21) filed his case in the same courthouse where Huggins's case was heard, but it was assigned to a different district judge. This time, the district court held that McCahey did not mandate dismissal. (22)

Invoking the Supreme Court's pronouncement that due process "is not a technical conception with a fixed content unrelated to time, place, and circumstances," (23) the district court took up the Mathews balancing anew and concluded that the procedures approved by McCahey no longer satisfied due process in light of subsequent technological and policy developments. (24) In particular, the court emphasized that the additional procedural safeguard sought by the plaintiffs-requiring banks to determine, prior to freezing an account, that the account does not contain only electronically deposited exempt funds--would impose only a "negligible" cost relative to the benefit it would produce. (25) The case proceeded in the district court until November 26, 2008, when it was mooted by statutory amendments to New York's debt collection procedures that effectively prevented banks from freezing accounts containing only exempt funds. (26)

The McCahey-Huggins-Mayers example involves a narrow issue arising out of one state's debt collection procedures, but it exposes important...