Annotation 14 - Fourteenth Amendment

The Procedure Which Is Due Process

The Interests Protected: Entitlements and Positivist Recognition .--''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.'' 180 Whether any procedural protections are due depends upon an analysis which of ''whether the nature of the interest is one within the contemplation of the 'liberty or property' language of the Fourteenth Amendment.'' 181 Traditionally, the Court has accorded due process recognition to one's ''life, liberty, or property'' as determined by reference to common understanding, as embodied in the development of the 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 for offenses against law deemed by a legislative body to be particularly heinous. One's liberty, 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.

Expansion of the understanding embodied in the ''liberty and property'' aspects of the clause began in the 1960s and followed an inconsistent path of acceleration and reining-in to the present. It has previously been noted that the Court's construction of ''liberty'' has long been much broader than would be encompassed within freedom from bodily restraint; while liberty of contract met its demise, the rise of rights of privacy, which included marital and intimate relationships, interests in one's dignity and reputational concerns, and the like, continues to lead to enlargement of the compass of the doctrine. A widening of the ''property'' concept in the 1960s occurred with respect to according protection to such public benefits as welfare assistance and other benefits and privileges that government conferred and that it could withdraw altogether for everyone, but as to which individual recipients and claimants had to be accorded proper procedures before they could lose their entitlement. Similarly, other kinds of conditional property rights, such as the interest of an installment buyer of goods in retaining control until it could be shown he was in default, were accorded greater protection.

The key to this expansion may be found in the intertwined doctrinal strands of jurisprudential theory under which the ''right- privilege'' distinction was abandoned and a positivist conception of entitlements arose. The former principle, discussed previously in the First Amendment context, 182 was pithily summarized by Justice Holmes years ago in dismissing a suit by a policeman protesting the dismissal from his job. ''The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.'' 183 Most often, the assertion that one had no ''vested property interest'' in something was made to justify the taking of that interest or the disregarding of that interest without substantive restraints being relevant, but it was also true that it was said that if something was ''only'' a privilege, such as government employment 184 or some form of public assistance, 185 procedural due process guarantees were also inapplicable. 186 In other words, if government need not provide something, it could provide it with any attached conditions it might choose. This line of thought was always opposed by the ''unconstitutional conditions'' doctrine, under which it was said 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.'' 187 Nonetheless, the two doctrines coexisted in an unstable relationship, until, in the 1960s and thereafter, the right- privilege distinction was largely shelved. 188

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--protections against erroneous governmental deprivation of something it might within its discretion have bestowed. 189 Thus, the Court found protected interests created by positive state enactments or practices; that is, the source of a right was ascertained not from tradition or the common law or ''natural rights,'' but rather a property or liberty interest was discerned in the governmental statute or practice that gave rise to it. Indeed, for a time it appeared that this positivist conception of rights was going to displace the previous traditional sources.

That advent of the new doctrine may be placed in Goldberg v. Kelly. 190 The Court held that, inasmuch as termination of welfare assistance pending resolution of a controversy over eligibility may deprive an eligible recipient of the means of livelihood, government must provide a pre-termination evidentiary hearing in which an initial determination of the validity of the dispensing agency's grounds for discontinuance of payment could be made. It was observed that the state agency did ''not contend that procedural due process is not applicable to the termination of welfare benefits. Such benefits are a matter of statutory entitlement for persons qualified to receive them.'' 191 Provisions for loss of some benefit or privilege upon the establishing of some ground for taking it away was perceived as giving the holder a property interest entitling him to proper procedure before termination or revocation.

Therefore, a wage garnishment statute which failed to provide for notice to the garnishee and an opportunity for the making of some form of determination that the garnisher is likely to prevail before the garnishee is deprived of the use of his money, even temporarily, was held not to accord due process. 192 Similarly voided was a repleven statute which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond and the allegation that the possessor of the property was in arrears on payment on the goods and that they reverted to the seller. 193 A state motor vehicle financial responsibility law which provided that the registration and license of an uninsured motorist involved in an accident was to be suspended unless he posted security for the amount of damages claimed by an aggrieved party without affording the driver any opportunity to raise the issue of liability prior to suspension violated the due process clause. 194

The Court's emphasis in these cases upon the importance to the claimant of retention of the rights led some lower courts to de termine the application of 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.'' 195 To have a property interest in the constitutional sense, the Court held, it was not enough that one have an abstract need or desire for a benefit, that one have only 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.'' 196 Thus, in 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. 197 On the other hand, in Perry v. Sindermann, 198 while there was no contract with a tenure provision nor any statutory assurance of it, the ''existing rules or understandings'' were deemed to provide a legitimate expectation independent of any contract provision, so that a professor employed for several years at a public college, in which the actual practice had the characteristics of tenure, had a protected interest. A statutory assurance was found in Arnett v. Kennedy, 199 in which the civil service laws and regulations made the continued employment subject to defeasance ''only for such cause as would promote the efficiency of the service.'' 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 had interpreted the ordinance as providing only employment at the will and pleasure of the city and the Supreme Court chose not to disturb that interpretation. 200

Beyond employment the Court found ''legitimate entitlements'' in a variety of situations. Thus, because Ohio included within its statutes a provision for free education to all residents between five and 21 years of age and a compulsory-attendance at school requirement, 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. 201 ''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.'' 202 The Court is highly deferential, however, to dismissal decisions based on academic grounds. 203

The most striking application of such due process analysis, to date, is Logan v. Zimmerman Brush Co., 204 in which a state antidiscrimination law required the enforcing agency to convene a factfinding 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 held that Logan had been denied due process. His cause of action was a property interest; older cases had clearly established causes of action as property and, in any event, Logan's claim was an entitlement grounded in state law and it could be removed only ''for cause.'' That property interest existed independently of the 120- day time period and could not simply be taken away by agency action or inaction. 205 Beyond statutory entitlements, the Court has looked to state decisional law to find that private utilities may not terminate service at will but only for cause, for nonpayment of charges, so that when there was a dispute about payment or the accuracy of charges, due process required the utility to follow procedures to resolve the dispute prior to terminating service. 206

With respect to liberty, the Court has followed a somewhat more meandering path, but it has arrived at the same place. In Wisconsin v. Constantineau, 207 it invalidated a statutory scheme by which a person, without any opportunity for a hearing and rebuttal, could be labeled an ''excessive drinker'' and barred from places where alcohol was served; without discussing the source of the entitlement, the Court noted that governmental action was stigmatizing the individual's reputation, honor, and integrity. But, in Paul v. Davis, 208 the Court looked exclusively to positive statutory enactments to determine whether a liberty interest was entitled to protection. Davis involved official defamation of someone--the police included plaintiff's photograph and name on a list of ''active shoplifters'' circulated to merchants--but the Court held that damage to reputation alone did not constitute a deprivation of any interest that the due process clause protected. 209 ''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.'' 210

A number of liberty interest cases involve prisoner rights and are dealt with in the section on criminal due process. But in terms of the emphasis upon positive entitlements, it is useful to treat them briefly here. In Meachum v. Fano, 211 the Court held that a state prisoner was not entitled to a factfinding 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. Under state law, a prisoner could be transferred for any reason or for no reason, and the due process clause did not mandate a different result. The decision of prison officials, therefore, was not dependent upon any state of facts that would be found upon a hearing. But in Vitek v. Jones, 212 a protected entitlement interest was found. The state statute at issue 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.

However, the Vitek Court also held that, independent of the statutory entitlement, 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, 213 a liberty interest that is separate from a positivist 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. 214 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. 215 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. Supp.4

In Ingraham v. Wright, 216 the Court, unanimously, agreed that freedom from wrongfully or excessively administered corporal punishment was a liberty interest of school children protected by the due process clause irrespective of positive state protection. ''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.'' 217

In Arnett v. Kennedy, 218 three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction in a new formulation. Dealing with a federal law conferring upon employees the right not to be discharged except for cause, the Justices acknowledged the prior formulation that recognized that due process rights could be created through statutory grants of entitlements, but they went on to observe that the same law withheld the procedural provisions now contended for; in other words, ''the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest.'' 219 Congress (and state legislatures) could qualify the conferral of an interest the due process clause might otherwise require.

But the other six Justices, while disagreeing among themselves in other respects, rejected this attempt so to 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.'' 220 Yet, in Bishop v. Wood, 221 the Court appeared to come close to adopting the three-Justice Arnett position, the dissenters accusing the majority of having repudiated the majority position in Arnett, and in Goss v. Lopez, 222 while the opinion of the Court stated the expressed formulation of Justice Powell in Arnett, the Justice himself dissented, using language quite similar to the Rehnquist Arnett language. More recently, however, first in a liberty interest case and then in a property interest case, 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 at will virtually any state-created property interest.'' 223 Substantive entitlements, therefore, may owe their existence to positive enactment, but the procedural protections are found in the judiciary's reading of the due process clause.

Proceedings in Which Procedural Due Process Must Be Observed .-- While due notice and a reasonable opportunity to be heard to present one's claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries, 224 there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. Thus, persons adversely affected by a specific law cannot challenge its validity on the ground that the legislative body or one of its committees 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.'' 225 Similarly, when an administrative agency engages in a legislative function, as, for example, when in pursuance of statutory authorization it drafts regulations of general application affecting an unknown number of persons, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation. 226 On the other hand, if a regulation, sometimes denominated an ''order,'' is of limited application, that is, affects the property or interests of specific named or nameable individuals or 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 factors discussed herein. 227

''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.'' 228 In one of the initial decisions construing the due process clause (this of the Fifth Amendment), the Court upheld the actions of the Secretary of the Treasury, acting pursuant to statute, to obtain from a collector of customs a substantial amount of money on which it was claimed he was in arrears. The Treasury simply issued a distress warrant and seized the collector's property, affording him no opportunity for a hearing, and remitting him to suit (the statute waiving the immunity of the United States) for recovery of his property upon proof that he had not withheld funds from the Treasury. 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. 229 In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment. 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. 230

A State may not, consistent with the due process clause, enforce a judgment against a party named in the proceeding without having given him an opportunity to be heard sometime before final judgment is entered. 231 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. The person may be remitted to other actions initiated by him 232 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. 233 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. 234

When Is Process Due .--''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.'' 235 ''The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.'' 236 Due process application, as has been noted, depends upon the nature of the interest; the form of the due process to be applied is determined by the weight of that interest balanced against the opposing interests. The currently prevailing standard is that formulated in Mathews v. Eldridge. 237 ''[I]dentification 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.''

Whereas, in Goldberg v. Kelly, 238 the effect of termination of welfare benefits could be ''devastating,'' a matter of loss of food and shelter, thus mandating a pre-deprivation hearing, the termination of Social Security benefits would be considerably different, inasmuch as they 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. 239

Application of the standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. For example, the previous cases had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, in requiring pre-deprivation hearings. The newer cases looked 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.'' 240

Thus, Sniadach v. Family Finance Corp., 241 mandating a pre- deprivation hearing before wages may be garnished, is apparently to be limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe. 242 Fuentes, which extended the Sniadach principle to all ''significant property interests'' and thus mandated pre-deprivation hearings, has been limited, so that when government provides certain procedural protections in structuring the ex parte judicial determinations that seizure should take place and provides for a prompt and adequate post-deprivation (but pre-judgment) hearing, the due process clause is satisfied. 243 To be valid, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor must 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 op portunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor. 244 Efforts to litigate challenges to seizures in actions involving two private parties can be thwarted by findings of ''no state action,'' but there often is sufficient participation by state officials to constitute state action and implicate due process. 245

Similarly, applying the tripartite test of Mathews v. Eldridge 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 and the avoidance of administrative burdens, and the risk of an erroneous termination require the provision of some minimum pre-termination notice and opportunity to respond, although there need not be a formal adversary hearing, followed by a full post- termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful. 246 In other cases, hearings of even minimum procedures have been dispensed with when what is to be estab lished is so pro forma or routine that the likelihood of error is very small. 247 In the case dealing with the 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. 248

In Brock v. Roadway Express, Inc., a Court plurality applied similar analysis to governmental regulation of private employment, determining that a full evidentiary hearing is not required to safeguard the interests of an employer prior to the ordered reinstatement of an employee dismissed for cause, 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. 249 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 whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments. 250

In another respect, the balancing standard has resulted in an alteration of previously existing law, requiring neither a pre- nor post-termination hearing in some instances when the State affords the claimant an alternative remedy, such as a judicial action for damages. Thus, passing on the infliction of corporal punishment in the public schools, a practice which implicated protected liberty interests, the Court held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which it 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 be not punished without cause or excessively. The Court did not inquire about the availability of judi cial remedies for such violation in the State in which the case arose. 251

More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor 252 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. 253 Five years later, however, the Court overruled Parratt, holding 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.'' 254 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. Sec. 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor Sec. 1983 provides a federal remedy.

In Logan v. Zimmerman Brush Co., 255 the Court had distinguished between property 256 deprivations resulting from random and unauthorized acts of state employees and those resulting from operation of established state procedures, and presumably this distinction still holds. Post deprivation procedures would not satisfy due process deprivations if it is ''the state system itself that destroys a complainant's property interest.''

In ''rare and extraordinary situations,'' 257 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 full later hearing. Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer. 258 Other possibilities are the collection of governmental revenues 259 and the seizure of enemy property in wartime. 260 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. 261 On the one hand, the Court was ambivalent about a right-privilege distinction; 262 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. 263

Finally, one may waive his due process rights, though as with other constitutional rights the waiver must be knowing and voluntary. 264

The Requirements of Due Process .--Bearing in mind that due process tolerates variances in form ''appropriate to the nature of the case,'' 265 it is nonetheless possible to indicate generally the basic requirements. ''[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.'' 266 ''Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.'' 267 The rules ''minimize substantively unfair or mistaken deprivations'' by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. 268 Thus, after the determination of the existence of a protected interest at issue, it must still be determined what procedure is adequate.

(1) Notice. ''An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'' 269 The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest. 270 Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it. 271

(2) Hearing. ''[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.'' 272 ''Parties whose rights are to be affected are entitled to be heard.'' 273 The notice of hearing and the opportunity to be heard ''must be granted at a meaningful time and in a meaningful manner.'' 274 ''The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment. . . .'' 275 The Court has in recent years developed a complex calculus to determine whether a hearing should precede the deprivation or whether a prompt post-deprivation hearing would be adequate. Generally, where the loss, even temporarily, would be severe or catastrophic, the hearing must come first; 276 where a temporary deprivation would be less severe and the opposing interest is important, the hearing may come later, 277 so long as it is promptly assured. 278 Too, the nature of what must be shown will be taken into account. Where the showing to be established is largely formal or subject to substantial documentary evidence, a post-termination hearing may suffice, 279 while in cases in which the evidence is largely subjective and dependent upon the personal appearance of the claimant the hearing must ordinarily precede the loss and the circumstance may require a more highly structured proceeding. 280 Sometimes, because of the nature of the opposing interest and the circumstances of the determination, the hearing need involve only minimal formality. 281 The hearing requirement does not depend upon an advance showing that the claimant will prevail at such a hearing. 282 While written presentations may be acceptable in some situations, in others the issue of veracity may necessitate oral presentation or oral examination of witnesses, or the petitioner may not have the ability to present his case in writing. 283

(3) Impartial Tribunal. Just as in criminal and quasi-criminal cases, 284 ''an impartial decision maker'' is an ''essential'' right in civil proceedings as well. 285 ''The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.'' 286 Thus, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others' investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction. 287 But there is a ''presumption of honesty and integrity in those serving as adjudicators,'' 288 so that the burden is on the objecting party to show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. It is not, without more, a violation of due process to combine investigating and adjudicating functions in the same agency, 289 although the question of combination of functions is a substantial one in administrative law. 290 A showing of bias or of strong implications of bias was deemed made in a case in which the state optometry board, which was made up only of private practitioners, was proceeding against other licensed optometrists for unprofessional conduct, because they were employed by corporations. Since success in the board's effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them. 291 However, the Court held that school board members did not have such an official or personal stake in the decision as to disqualify them from making the decision whether to fire teachers who had engaged in a strike against the school system in violation of state law. 292 A lesser standard of impartiality applies to an administrative officer who acts in a prosecutorial role. 293

(4) Confrontation and Cross-Examination. ''In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.'' 294 Where the ''evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,'' the individual's right to show that it is untrue depends on the rights of confrontation and cross-examination. ''This Court has been zealous to protect these rights from ero sion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.'' 295

(5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum. ''[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.'' 296 Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference has recommended that all do so. 297 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization. 298

(6) Decision on the Record. [T]he decisionmaker's conclusion as to a recipients' eligibility must rest solely on the legal rules and evidence adduced at the hearing. . . . To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.'' 299

(7) Counsel. In Goldberg v. Kelly, 300 the Court held that an agency must permit the recipient to be represented by and assisted by counsel. It did not, however, decide that the agency must provide counsel for one unable to afford his own and did not decide that the agency need not do so. In the years since, the right of civil litigants in court and persons before agencies who could not afford retained counsel has excited much controversy, and while quite recently the Court has applied its balancing standard to require a case-by-case determination with respect to the right to appointed counsel, the matter seems far from settled. In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized as ''an extremely important one'' the parent's interest, but observed that the State's interest in protecting the welfare of children was likewise very important. The interest in correct factfinding was strong on both sides, but, the Court thought, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no ''specially troublesome'' substantive or procedural issues had been raised. 301 But what tipped the scale in the Court's decision not to require counsel in this case was the ''pre-eminent generalization it drew from its precedents that an indigent has an absolute right to appointed counsel only where he may lose his physical liberty if he loses the litigation. 302 Thus, in all other situations when liberty or property interests are present, the right of an indigent to appointed counsel is to be determined on a case-by-case basis, initially by the trial judge, subject to appellate review. 303 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights, 304 and it is to be supposed that the counsel issue will recur.

Footnotes

[Footnote 180] Board of Regents v. Roth, 408 U.S. 564, 569 -70 (1972). Developments under the Fifth Amendment's due process clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).

[Footnote 181] Morrissey v. Brewer, 408 U.S. 471, 481 (1982).

[Footnote 182] Supra, pp. 1084-90.

[Footnote 183] McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 2d 517, 522 (1892).

[Footnote 184] 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).

[Footnote 185] Flemming v. Nestor, 363 U.S. 603 (1960).

[Footnote 186] Barsky v. Board of Regents, 347 U.S. 442 (1954).

[Footnote 187] Perry v. Sinderman, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958).

[Footnote 188] 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). That the right-privilege distinction is not totally moribund is evident. 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).

[Footnote 189] That is, Congress or a state legislature could 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).

[Footnote 190] 397 U.S. 254 (1970).

[Footnote 191] Id. at 261-62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).

[Footnote 192] Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

[Footnote 193] Fuentes v. Shevin, 407 U.S. 67 (1972).

[Footnote 194] 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).

[Footnote 195] Board of Regents v. Roth, 408 U.S. 564, 569 -71 (1972).

[Footnote 196] Id. at 577.

[Footnote 197] Id. 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. Id. at 572-75. For an instance of protection accorded a claimant on the basis of such an action, see Codd v. Vegler, 429 U.S. 624 (1977). See also Bishop v. Wood, 426 U.S. 341, 347 -50 (1976); Vitek v. Jones, 445 U.S. 480, 491 -494 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82 -84 (1978).

[Footnote 198] 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).

[Footnote 199] 416 U.S. 134 (1974).

[Footnote 200] 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.'' Id. at 344-45. 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. Id. at 345.

[Footnote 201] Goss v. Lopez, 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).

[Footnote 202] Goss v. Lopez, 419 U.S. 565, 574 (1975). 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.)

[Footnote 203] 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 .

[Footnote 204] 455 U.S. 422 (1982). A different majority of the Court also found an equal protection denial. Id. at 438, 443.

[Footnote 205] Id. at 428-33.

[Footnote 206] Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978).

[Footnote 207] 400 U.S. 433 (1971).

[Footnote 208] 424 U.S. 693 (1976).

[Footnote 209] The Court, id. 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.'' Id. 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. Supra, p.1727 n.197. And see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991).

[Footnote 210] 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).

[Footnote 211] 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976).

[Footnote 212] 445 U.S. 480 (1980).

[Footnote 213] Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).

[Footnote 214] Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); 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).

[Footnote 215] 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).

[Footnote 4 (1996 Supplement)] Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995) (solitary confinement not atypical ''in relation to the ordinary incidents of prison life'').

[Footnote 216] 430 U.S. 651 (1977).

[Footnote 217] Id. 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).

[Footnote 218] 416 U.S. 134 (1974).

[Footnote 219] Id. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger).

[Footnote 220] Id. at 167 (Justices Powell and Blackmun concurring). See id. at 177 (Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan dissenting).

[Footnote 221] 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.

[Footnote 222] 419 U.S. 565, 573 -74 (1975). See id. at 584, 586-87 (Justice Powell dissenting).

[Footnote 223] Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)).

[Footnote 224] Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

[Footnote 225] 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).

[Footnote 226] United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

[Footnote 227] Id. 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).

[Footnote 228] Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 246 -47 (1944).

[Footnote 229] Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).

[Footnote 230] Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).

[Footnote 231] 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).

[Footnote 232] 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).

[Footnote 233] 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).

[Footnote 234] Saunders v. Shaw, 244 U.S. 317 (1917).

[Footnote 235] Goldberg v. Kelly, 397 U.S. 254, 262 -63 (1970), (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)).

[Footnote 236] Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894 -95 (1961).

[Footnote 237] 424 U.S. 319, 335 (1976).

[Footnote 238] 397 U.S. 254, 264 (1970).

[Footnote 239] Mathews v. Eldridge, 424 U.S. 319, 339 -49 (1976).

[Footnote 240] 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.

[Footnote 241] 395 U.S. 337 (1969).

[Footnote 242] 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 the Court by Justice White emphasizing the wages aspect of the earlier case).

[Footnote 243] Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). 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, supra, 616-19 (Justice Blackmun dissenting); Mitchell, supra, 635-36 (Justice Stewart dissenting).

[Footnote 244] Mitchell v. W.T. Grant Co., 416 U.S. 600, 615 -18 (1974), and id. 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). 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.'' Id. at 11.

[Footnote 245] Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman'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).

[Footnote 246] Arnett v. Kennedy, 416 U.S. 134, 170 -71 (1974) (Justice Powell concurring), and id. 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. 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).

[Footnote 247] 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).

[Footnote 248] Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

[Footnote 249] 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.

[Footnote 250] 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.

[Footnote 251] 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.

[Footnote 252] 451 U.S. 527 (1981).

[Footnote 253] Id. at 541, 543-44.

[Footnote 254] Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials).

[Footnote 255] 455 U.S. 422, 435 -36 (1982). The Court also emphasized that a post-deprivation hearing in the context of this case 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.'' Id. at 436-37.

[Footnote 256] Parratt was a property loss case and while Ingraham was a liberty case the holding there was not that, standing alone, a tort remedy was an adequate process. It is not clear, therefore, that a tort remedy could ever be an adequate substitute for some kind of hearing in a liberty loss situation.

[Footnote 257] 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).

[Footnote 258] 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).

[Footnote 259] Phillips v. Commissioner, 283 U.S. 589, 597 (1931).

[Footnote 260] Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921). See also Bowles v. Willingham, 321 U.S. 503 (1944).

[Footnote 261] Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961).

[Footnote 262] Id. at 894, 895, 896.

[Footnote 263] Id. 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 id. at 181-83 (Justice White concurring in part and dissenting in part).

[Footnote 264] D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94 -96 (1972).

[Footnote 265] Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950).

[Footnote 266] Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

[Footnote 267] Carey v. Piphus, 435 U.S. 247, 259 (1978).

[Footnote 268] Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one's interests even if one cannot change the result. Carey v. Piphus, 435 U.S. 247, 266 -67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).

[Footnote 269] Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 116 S. Ct. 1761 (1996) (res judicata may not apply where taxpayer who challenged a county's occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

[Footnote 270] Goldberg v. Kelly, 397 U.S. 254, 267 -68 (1970).

[Footnote 271] Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).

[Footnote 272] Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

[Footnote 273] Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

[Footnote 274] Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

[Footnote 275] Fuentes v. Shevin, 407 U.S. 67, 80 -81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170 -71 (1951) (Justice Frankfurter concurring).

[Footnote 276] Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

[Footnote 277] Arnett v. Kennedy, 416 U.S. 134 (1974); Mathews v. Eldridge, 424 U.S. 319 (1976); Barry v. Barchi, 443 U.S. 55 (1979).

[Footnote 278] Id. at 66.

[Footnote 279] Mathews v. Eldridge, 424 U.S. 319, 343 -45 (1976); Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); Mackey v. Montrym, 443 U.S. 1, 13 -17 (1979); Barry v. Barchi, 443 U.S. 55, 65 -66 (1979).

[Footnote 280] Goldberg v. Kelly, 397 U.S. 254 (1970).

[Footnote 281] Goss v. Lopez, 419 U.S. 565 (1975) (temporary suspension of student from school). See also Board of Curators v. Horowitz, 435 U.S. 78 (1978).

[Footnote 282] Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915).

[Footnote 283] Goldberg v. Kelly, 397 U.S. 254, 266 -67 (1970); Mathews v. Eldridge, 424 U.S. 319, 343 -45 (1976). See also FCC v. WJR, 337 U.S. 265, 275 -77 (1949).

[Footnote 284] Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955).

[Footnote 285] Goldberg v. Kelly, 397 U.S. 254, 271 (1970).

[Footnote 286] Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982).

[Footnote 287] Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).

[Footnote 288] Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941).

[Footnote 289] Withrow v. Larkin, 421 U.S. 35 (1975).

[Footnote 290] Id. at 51.

[Footnote 291] Gibson v. Berryhill, 411 U.S. 564 (1973).

[Footnote 292] Hortonville Joint School Dist. v. Hortonville Educ. Ass'n, 426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196-99 (Justice White), and 216 (Justice Marshall).

[Footnote 293] Marshall v. Jerrico, 446 U.S. 238, 248 -50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But ''traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.'' Id. at 249.

[Footnote 294] Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93 -94 (1913); Willner v. Committee on Character, 373 U.S. 96, 103 -04 (1963). Cf. Sec. 7(c) of the Administrative Procedure Act, 5 U.S.C. Sec. 556(d).

[Footnote 295] Greene v. McElroy, 360 U.S. 474, 496 -97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343 -45 (1976).

[Footnote 296] Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).

[Footnote 297] Recommendations and Reports of the Administrative Conference of the United States 571 (1968-1970).

[Footnote 298] FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964); Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied, 400 U.S. 943 (1970).

[Footnote 299] Goldberg v. Kelly, 397 U.S. 254, 271 (1970). The exclusiveness of the record is fundamental in administrative law. See 7(d) of the Administrative Procedure Act, 5 U.S.C. Sec. 556(e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street Ry. v. Railroad Comm'n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence).

[Footnote 300] 397 U.S. 254, 270 -71 (1970).

[Footnote 301] Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The decision was a five-to-four one, Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.

[Footnote 302] Id. at 25-27. The Court purported to draw the distinction from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to counsel in probation revocation proceedings). To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v. Eldridge, upon which the Court (and dissent) relied, relates to the importance of the interest to the person claiming the right, thus, at least in this context, reducing the value of the first Eldridge factor.

[Footnote 303] Id. at 452 U.S., 31-32. The Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case-by-case application Cf. 424 U.S. 319, 344 (1976).

[Footnote 304] E.g., Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state-funded blood testing in a paternity action the State required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involving state termination of parental rights).


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