Procedural Due Process of Law, Civil

Author:Frank I. Michelman

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The Fifth Amendment forbids the United States to "deprive" any person of "life, liberty, or property without DUE

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PROCESS OF LAW." The FOURTEENTH AMENDMENT imposes an identical prohibition on the states.

Due process is the ancient core of CONSTITUTIONALISM. It is a traditional legal expression of concern for the fate of persons in the presence of organized social power. The question of according due process arises when governments assert themselves adversely to the interests of individuals.

In modern usage "due process" connotes a certain normative ideal for decisions about the exercise of power. Very broadly, it has come to mean decisions that are not arbitrary, but are aligned with publicly accepted aims and values; are not dictatorial, but allow affected persons a suitable part in their making; and are not oppressive, but treat those affected with the respect owed political associates and fellow human beings. It is from the liberal individualist tradition that these abstract due process standards?of reason, voice, and dignity?have drawn their more concrete content. That content includes the definition of proper aims for state activity, the canons of legitimating participation and consent, and the conceptions of human personality that set the threshold of respectful treatment.

The law distinguishes between "substantive" and "procedural" due process. An arbitrary or groundless decision may violate substantive due process regardless of how it came to be made. O'CONNOR V. DONALDSON (1975), for example, held that no antecedent procedure will justify incarceration of a harmless eccentric. Conversely, a peremptory decision may violate procedural due process regardless of purposive justification. Guilt in fact will not justify sudden, final dismissal of a faithless government employee without a hearing, as the Supreme Court stated in ARNETT V. KENNEDY (1974). The due process claim is "procedural" rather than "substantive" when it questions not the state's authority to impose the harm in question by an adequate decision process, but rather the adequacy of the process actually used.

Of course, procedural demands gain much of their power from their perceived contribution to substantive accuracy and enlightenment. Justice FELIX FRANKFURTER stated in JOINT ANTI-FASCIST COMMITTEE V. MCGRATH (1951): "No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done."

The focal concern of procedural due process is the set of procedures, epitomized by the judicial trial, whereby governing rules and standards are brought to bear on individuals in specific cases. The doctrine also has some further extension to the formation of the governing rules and standards. Due process can support a claim for direct voice in the formation process, for example, by industry members regarding regulatory standards under consideration by an administrative agency. It can also be the ground of an objection to the nonrepresentative character of the political process in which a standard originates, for example, a restriction on professional entry adopted by a board composed of self-interested professionals. There may also be a due process failure in the way a legal standard is formulated. The standard may be too vague and ill-defined to ensure even-handed application or allow for effective submission of proofs and arguments by someone contesting its application; or, conversely, it may be so narrowly drawn as to represent an arbitrary or vindictive discrimination against a disfavored few. Lawmaking defects of these various kinds are chiefly the concern of doctrines of SEPARATION OF POWERS, unconstitutional delegation, VAGUENESS, and prohibition of BILLS OF ATTAINDER, but they cannot in practice be held entirely separate from procedural due process claims.

In Joint Anti-Fascist Refugee Committee v. McGrath Justice Frankfurter invoked a history in which the adversary judicial trial has dominated our law's vision of procedural due process, as the model of a procedure designed to assure reason, voice, and dignity to individuals threatened with harm by the state. Criminal due process shows the fullest development of the adversarial model, just as criminal proceedings tend to maximize the conditions bespeaking the need for adversarial safeguards: charges specifically directed against the accused individual, by highly visible officers acting in the state's name, threatening not only tangible deprivation of liberty or wealth but also public degradation. Some state-initiated proceedings against individuals, such as those brought to establish paternity or terminate parental status, while nominally civil in character, resemble criminal prosecutions in their accusatory and stigmatic implications or in the gravity of their threatened sanctions, leaving little doubt about the need to grant respondents something approaching the full set of due process safeguards. Such safeguards were required by the Court in LASSITER V. DEPARTMENT OF SOCIAL SERVICES (1981). As cases of impending state-imposed harm depart further from the criminal prosecution paradigm, however, they reveal that puzzling issues of political and legal principle are latent in the general ideal of due process. Such cases pose two distinct questions for due process doctrine. First, does the occasion demand any kind of proceeding at all? Assuming an affirmative answer, the second question is, what process is due?

Events that from certain perspectives are describable as deprivations of life, liberty, or property in which the state is implicated?for example, a creditor acting under a legal privilege to repossess consumer goods from an assertedly defaulting debtor?may occur with no provision in the law for any process at all. The most theoretically

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telling of recent judicial encounters with due process doctrine has been concerned with defining the occasions when some trial-type process is constitutionally required.

Due process further stands for a constitutionally mandated procedural code for the fair conduct of whatever trial-type proceedings are to occur. In this second aspect, due process doctrine is a compendium of answers to such varied questions as: May the hearing be postponed until after the onset of the deprivation (such as a summary suspension of a student from school) or must there be a predeprivation hearing? May the state depart from COMMON LAW rules regarding HEARSAY evidence, allow its judges to interrogate witnesses, use publication rather than personal contact as a means of notifying concerned parties of pending proceedings, or deny parties the assistance of counsel in small claims tribunals?

The answers found in due process doctrine to such questions will bind a government just insofar as it chooses, or is required by the first aspect of the doctrine, to use judicial-type forums or trial-type proceedings to carry out their pursuits. The chief problems posed by such questions are the recurrent ones of JUDICIAL REVIEW and CONSTITUTIONAL INTERPRETATION : from what sources, by what modes of reasoning, shall the answers be drawn, given the breadth and imprecision of constitutional text? Historically, the main methodological alternatives and debates have arisen in the context of criminal prosecutions and been thence carried over to the civil side.

Constitutional claims to trial-type proceedings are most obviously compelling when individuals stand to be harmed by actions of officials performing state functions or wielding state powers. Yet even in such cases the individual interests at stake may be found insufficient to call due process rights into play. On a textual level, the question plainly is whether the affected interest is identifiable as "life, liberty, or property." History, however, discloses contrasting approaches to that question. It was once commonly supposed that any serious imposition on an individual?any "grievous loss"?could qualify as a constitutionally significant deprivation. A chief feature of contemporary due process doctrine is that the potency of a harm as a due process trigger turns not on such an ordinary assessment of its weight or practical severity but rather on a technical, categorical judgment about its legal "nature." In adjudicating what categories of interests legally qualify as "life," "liberty," or "property" for due process analysis, the Court has drawn eclectically on sources both naturalistic and positivistic?on both a HIGHER LAW tradition and on currently enacted law.

This eclecticism, and indeed the entire complex practice of categorically excluding some concededly weighty interests from due process protection, has apparently evolved out of the Court's encounters with modern welfare state activism. Consider the case of a government worker unceremoniously fired, or of a disability pensioner whose monthly payments are cut off. In such cases the underlying...

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