PROCEDURAL DUE PROCESS OF LAW, CIVIL (Update 1)

A claim for procedural due process is a claim that the government cannot undertake a particular act vis-à-vis an individual or set of individuals without according them an opportunity to be heard. Depending upon the situation, a consitutionally adequate opportunity to be heard may be involve a "hearing" that is written or oral and may occur before or after the alleged "deprivation" has occurred. The contexts in which the issue of procedural due process arises vary; included among the litigants who have raised procedural due process challenges heard by the United States Supreme Court since the mid-1980s are prisoners, aliens, food stamp recipients, veterans, and college athletes.

A procedural due process claim is not a challenge that the government is absolutely forbidden to act in a particular way. Rather, a procedural due process challenge is that as a predicate to action, the government must accord the person(s) subject to the action with a set of procedural safeguards, designed to make the government's decision more accurate and to recognize the dignitary and participatory interests in process that both the person(s) and society have.

Making the distinction in practice between substantive due process and procedural due process, however, is not always easy. For example, many due process opinions discuss whether or not a court in one jurisdiction can hale an outsider (a citizen of another state or country) before it and what jurisdiction's law may constitutionally be applied to that lawsuit. For more than a century, the Supreme Court has talked about these cases as raising due process problems, but has not always identified which kind of due process was at issue. Only relatively recently have commentators discussed such issues as substantive due process questions—despite the fact that the issue arises in the context of where and how to conduct a lawsuit. Another illustration is a group of due process cases that address access to evidence. In Arizona v. Youngblood (1988) the Supreme Court held that upon specific request of defendants, prosecutors have some obligation to disclose exculpatory information in their possession, but, absent bad faith on the part of police, "failure to preserve potentially useful evidence does not constitute denial of due process of law." Once again, although the rights involved related to litigation, the Court did not specify the kind of due process at issue but relied on a substantive due process analysis.

Supreme Court doctrine requires that for one to bring a procedural due process claim, two prefatory elements be established—state action and intent. Knowing when the state is acting is not always easy. For example, the Supreme Court concluded in National Collegiate Athletic Association v. Tarkanian (1987) that the National Collegiate Athletic Association was not engaged in state action, despite the fact that its 960 members include "virtually all public and private universities and four-year colleges conducting major athletic programs in the United States." Second, the governmental action must be intentional. In Daniels v. Williams (1986) the Supreme Court held 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."

Once a claim has cleared the hurdles of intentional deprivations by government action, two more questions remain: (1) Does the governmental action threaten to deprive one of "life," "liberty," or "property"? (2) If so, how much process is due? The answers from the Supreme Court have limited both the instances when the clause applies and the quantum of process due.

"Property" continues to include both traditionally understood material possessions and state-created benefits, such as social security, licenses, and other statutorily defined restrictions on governmental action. However, statutory entitlements (whether characterized as "property" or "liberty") are now read more restrictively. To show such entitlement, the legislative or regulatory statement has to be positivistic (i.e., X "shall" occur) and the limits on official discretion must be express (i.e., X shall occur unless the official finds A, B, or C).

The question of what process is due might have many answers. For example, one might transfer the criminal procedure requirements elaborated in the United States Constitution to the context of civil proceedings. (The line between "civil" and "criminal" is itself a complex one to draw; for example, the state may be a party, and seek penalties, in many civil contexts.) The Constitution is itself relatively silent about what procedures are to be provided in civil lawsuits. Article III sets forth the requirements for the federal judiciary, but its provisions are largely structural. The seventh amendment "preserves" the right to a trial by jury in federal court and places some limits on appellate review of jury verdicts. The first amendment speaks of the right to petition for redress, and the Fifth Amendment and fourteenth amendment, include "due process" clauses but do not specify what process is due.

The doctrinal answer to the question of the amount of process due—supplied by Supreme Court interpretations of the due process clauses—continues to rely upon the adversarial, judicial model as its touchstone, but increasingly the Court has accepted departures from that model as constitutionally sufficient. The Court's formula in mathews v. eldridge (1976) remains a vital part of the analysis of how much process is due. A court asks about the private interest at stake, the government interest at stake (often assumed to be the conservation of resources by having inexpensive process), and the risk of error in the current procedure as compared to the risk of error if additional procedural safeguards were in place. Commentators have observed that this utilitarian approach assumes that accuracy is the only goal of the process accorded. Moreover, none of the three prongs of the test can be measured; the Court's utilitarian cost-benefit analysis may mask the subjectivity of the measurements of the costs and benefits. To the extent courts attempt to ascertain both, it is difficult, if not impossible, to measure the harms of false positives (giving benefits when the state should withhold them) and false negatives (withholding benefits when the state should grant them).

As a result of this approach, the Court frequently approves of minimal procedural safeguards. One example comes from the context of prison litigation, in which the Court, in Superintendent, Massachusetts Correctional Institution v. Hill (1985), permitted a relatively low standard of evidentiary proof ("some evidence") when prisoners' good-time credits are revoked and they must remain incarcerated. Another illustration comes from Brock v. Roadway Express, Inc. (1987), in which a trucking company challenged the secretary of transportation's order to reinstate a trucker who allegedly had been a whistleblower and complained about the company's safety regulations. The Court concluded that although the company had the right to be informed of relevant evidence supporting the grievant, the company had no right to a "live" evidentiary hearing prior to being required to reinstate the trucker temporarily. Further, the Court, in Walters v. National Association of Radiation Survivors (1985), refused to hold that civil litigants have a procedural due process right to counsel whenever they contest government decisions.

One aspect of the entitlement-or process-due approach of the Supreme Court reveals the analytic limits of current doctrine. In arnett v. kennedy (1974) the Supreme Court faced a statute that both created (in the Court's terms) an entitlement to a job and also provided a specific and limited set of procedures to determine whether termination of employment was appropriate. A plurality of the Court upheld the package as having provided all the process due; Justice william h. rehnquist remarked that the employee had to accept the "bitter with the sweet." When the Supreme Court faced the issue again in Cleveland Board of Education v. Loudermill (1985), a majority held that while the question of whether an entitlement (a "property" interest) existed was to be decided by reference to statutory statements, the question of what process is due was one reserved for the Court. The current state of the law as expressed in Loudermill has a conceptual flaw: why conclude that the question of interpreting "property" in the due process clauses is to be decided by deferring to the legislature but that the "process due" is to be determined solely by the Court?

Another aspect of the constitutional interpretation problem remains unclear: How great a role should the legislature play in defining "liberty"? Some opinions suggest that deference to the legislature is appropriate to decide whether liberty rights or property rights are at stake, while other opinions suggest that liberty is not, and can never be, dependent upon positive legislative enactment. The issue arose in Kentucky Department of Corrections v. Thompson (1989), in which a majority of the Court concluded that prisoners' interests in "unfettered visitation" by nonprisoners is not "guaranteed directly by the Due Process Clause," while Justices thurgood marshall, william j. brennan, and john paul stevens concluded that "the exercise of such unbridled governmental power over the basic human need to see family members and friends strikes at the heart of the liberty protected by the Due Process Clause." In contrast, the Supreme Court, in Lassiter v. Department of Social Services (1981), assumed without discussion the existence of a liberty interest in being provided a lawyer when a parent faced state termination of her right to parent.

Writing in this encyclopedia in 1986, Frank Michelman noted that the critique of the due process model frequently arose from challenges to decision making by agencies, in the "pressure of the "mass justice' conditions imposed by modern governmental benefit programs involving very large numbers of eligibility decisions." Since then, the same issue—pressures of "mass justice"—have moved from the context of agencies to the context of courts. Contemporary commentary focuses on the question of what process is due when considering the adequacy of procedure in the federal and state courts. Of late, judicial decision making has been much criticized as too slow, too expensive, too cumbersome, and too unresponsive to litigants' needs. Suggested alternatives, often labeled "alternative dispute resolution" (ADR), range from simplified trials and court-annexed arbitration to judicially conducted settlement programs and diversion to noncourt-based decision making assistance. Some of these programs are then challenged on various grounds, such as that they fail to accord procedural due process, they unduly burden state or federally based rights to a jury trial, and they exceed the powers authorized to courts or to judges.

The creation and growing popularity of ADR mechanisms and the criticism of court-based adjudicatory mechanisms lend further strength to the weakening of the procedural due process model, at least as exemplified by goldberg v. kelly (1970), in which the Court required an evidentiary hearing prior to the termination of welfare benefits. Proponents of ADR argue that the formal, trial-like model embodied in Goldberg has proven inadequate and that other modes are to be preferred. These modes are generally less formal, lawyer-free, and conducted in private; they may use arbitrators or mediators in lieu of judges. The claims (debated in the literature and by empirical studies) are that such modes are speedier and more economic and that they produce better outcomes than does trial.

The increased reliance on procedural requirements, the "due process model," has been criticized not only by those who seek to conserve the expenditure of private and government resources but also by those who challenge government action but question the utility of the means. Some argue that procedural requirements wrongly place the risk of error on the state; others, who are proponents of state aid, argue the procedural due process model implicit in Goldberg wrongly equates procedural regularity and adversarial modes with good outcomes. Commentators have wondered about the utility of providing procedural opportunities to individuals with few, if any, resources to exercise them. For example, of what value is the right of cross-examination if no provision is made for a state-paid attorney? Given the resource disparities between government and individuals, procedural due process may create a façade of legitimacy for decisions that are intrinsically unfair. At a more fundamental level, this critique questions the assumptions of procedural due process opinions that a conflict between the state and the individual is inevitable. The hope is that communitarian approaches may well hold more promise for giving indigent individuals access to the riches of society. Those who endorse the Goldberg paradigm have been criticized for their limited vision—premised upon a classic liberal assumption of autonomous individuals confronting the state and relying on legalistic solutions.

In response, proponents of the Goldberg paradigm, while sympathetic to communitarian goals, note that the state "as friend" almost never materializes. Further, the formality of the Goldberg procedures embodies hopes of empowering actors otherwise less powerful. Although not a comprehensive solution, the requirement of formal procedure may be better than its absence. Moreover, many within the legal services community who participated in the Goldberg litigation did not, at the time, see its goal as procedural reform. Claims around procedural rights were used as organizing tools; the hopes were that procedural reform, along with changes in other court-based rules, such as greater use of class actions, the provision of free attorneys, and easier access to the courts, would all result in diminished social inequities. Yet another possibility is that the classic due process conception of the state versus an individual can be reenvisioned as an interaction of the state, an individual, and the community in which both litigants are situated. The debate about the utility of the procedural due process model is still alive in this decade, as conferences and law-review articles address the problems of what kinds of dispute resolution governments should be offering, funding, and encouraging.

One's view of procedure, of the aspirations of Goldberg, of the limits imposed under the Mathews approach, and of the critique from both the Right and the Left depends in large measure upon one's understanding of the proper role of the state and of the relationship between government and individuals. Procedure (procedural due process included) is a vehicle for the expression of political and social values—a vision of a state in need of restraint or not, a vision of human dignity as enhanced or not enhanced by formalized interaction between decision maker and individual.

Judith Resnik
(1992)

Bibliography

Cover, Robert M. et al. 1988 Procedure. New York: Foundation Press.

Delgado, Richard et al. 1985 Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution. Wisconsin Law Review 1985:1359–1404.

Handler, Joel 1986 The Conditions of Discretion: Autonomy, Community, Bureaucracy. New York: Russell Sage Foundation.

Lind, E. Allen et al. 1989 The Perception of Justice: Tort Litigants' Views of the Civil Justice System. Santa Monica, Calif.: Rand Corporation, Institute for Civil Justice.

Resnik, Judith 1986 Failing Faith: Adjudicatory Procedure in Decline. University of Chicago Law Review 53:494–560.

Sparer, Edward 1984 Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement. Stanford Law Review 36:509–574.