Fair Hearing

• Author: Stephen C. Yeazell
• Pages: 965-966

Page 965

In numerous contexts the Constitution requires the state to afford its citizens DUE PROCESS, which frequently includes an adversarial voicing of opposed contentions. "Fair hearing" in this broadest sense could thus include both the specific constitutional guarantees that attach to criminal trials and the more general requirement that civil litigation meet minimal standards of fairness. Among lawyers, however, the term more narrowly refers to the procedure that must be afforded to persons involved not in judicial trials but in some less formal dispute with the state. Speaking to that issue, the Supreme Court has asked when the Constitution requires any process and what that process should be. For some time the Court focused on the first question, assuming that if any process was due, it would resemble a formal trial; later decisions emphasized the flexibility of appropriate process.

For due process requirements to attach to any proceedings, they must, by involving governmental action that threatens life, liberty, or property, fall within the requirements of the Fifth and FOURTEENTH AMENDMENTS. Following in the wake of the welfare state, the Court has expanded its definition of property to include entitlements to various government benefits (for example, welfare and disability payments, tenured positions in state employment). Many threatened deprivations of such benefits consequently require due process, and the question becomes what that process must be. The Court has never answered that question in categorical terms, insisting that each situation calls for a rather individualized judgment. It has, however, suggested some minimal criteria and a set of factors to be considered in striking the balance from case to case. In deciding what process is due, one must consider "first, the private interest ? 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 requirements would entail" (MATHEWS V. ELDRIDGE, 1976). These factors represent an attempt to arrive at conclusions about two aspects of process: timing and elaborateness.

At a minimum, due process requires notice that tells the person threatened with...