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e Law—Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190 (1974). In Mills v. Rogers, 457 U.S. 291 (1982), the Court had before it the issue of the due process right of committed mental patients at state hospitals to refuse administration of antipsychotic drugs. An intervening decision of the State’s highest court had measurably strengthened the patients’ rights under both state and federal law and the Court remanded for reconsideration in light of the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981). 670 Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. No. 94–103, 89 Stat. 486, as amended, 42 U.S.C. §§ 6000 et seq., as to which see Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981); Mental Health Systems Act, 94 Stat. 1565, 42 U.S.C. § 9401 et seq. sion on such a judgment.’’ 664 Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures. 665 The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, 666 the Court upheld a Kansas law which allowed civil commitment without a showing of ‘‘mental illness,’’ so that a defendant diagnosed as a pedophile could be committed based on his having a ‘‘mental abnormality’’ which made him ‘‘likely to engage in acts of sexual violence.’’ Although the Court minimized the use of this expanded nomenclature, 667 the concept of ‘‘mental abnormality’’ appears both more encompassing and less defined than the concept of ‘‘mental illness.’’ It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior. 668 Still other issues await exploration. The whole area of the rights of committed individuals will likely be explored under a substantive and procedural due process analysis. 669 Additionally, federal legislation is becoming extensive, 670 and state legislative and VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00121 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1792 AMENDMENT 14—RIGHTS GUARANTEED 671 See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). 672 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) (?We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death?). 673 497 U.S. 261 (1990). 674 497 U.S. at 279. 675 See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting). 676 497 U.S. at 286. judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests which the due process clause protects. 671 ‘‘Right to Die’’.—Although the popular term ?right to die? has been used as a label to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance, ?right to die? could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested—physician-assisted suicide—which appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician. There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens. 672 On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health, 673 the Court, rather than directly addressing the issue, ‘‘assume[d]’’ that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. 674 More importantly, however, a majority of the Justices separately declared that such a liberty interest exists. 675 Yet, it is not clear how actively the Court would seek to protect this right from state regulation. In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be ‘‘clear and convincing evidence’’ of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or ‘‘anyone but the patient herself’’ in making this decision. 676 Thus, in the absence of clear and convincing evidence that VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00122 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1793 677 ‘‘A State is entitled to guard against potential abuses’’ that can occur if family members do not protect a patient’s best interests, and ‘‘may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy, and [instead] simply assert an unqualified interest in the preservation of human life to be weighed against the . . . interests of the individual.’’ 497 U.S. at 281-82. 678 There was testimony that the patient in Cruzan could be kept ‘‘alive’’ for about 30 years if nutrition and hydration were continued. 679 521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected an argument that a state which prohibited assisted suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment. 680 521 U.S. at 720. 681 E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty interest in terminating pregnancy). the patient had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration. 677 Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized. 678 However, the Court made clear in a subsequent case, Washington v. Glucksberg, 679 that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention. In Glucksberg, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with ‘‘utmost care’’ before breaking new ground in the area of liberty interests. 680 The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases, 681 noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00123 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1794 AMENDMENT 14—RIGHTS GUARANTEED 682 A passing reference by Justice O’Connor in a concurring opinion in Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty interest in seeking pain relief, or ‘‘palliative’’ care. Glucksberg and Vacco, 521 U.S. at 736-37 (Justice O’Connor, concurring). 683 Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894). 684 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). ‘‘Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.’’ Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884). 685 Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899). ‘‘A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.’’ Hurtado v. California, 110 U.S. at 529. 686 Twining, 211 U.S. at 101. to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia. 682 PROCEDURAL DUE PROCESS: CIVIL Generally Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power. 683 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved. 684 One of the basic criteria used to establish if due process is satisfied is whether such procedure was historically required in like circumstance. Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country. 685 In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be ‘‘fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.’’ 686 Fortunately, the States VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00124 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1795 687 Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944). 688 Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890). 689 For instance, proceedings to raise revenue by levying and collecting taxes are not necessarily judicial proceedings, yet their validity is not thereby impaired. McMillen v. Anderson, 95 U.S. 37, 41 (1877). 690 Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess regulatory commissions in evaluating expert testimony). 691 See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding the preclusion of judicial review of decisions of the Veterans Administration regarding veteran’s benefits). 692 State statutes vesting in a parole board certain judicial functions, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court authority to appoint park commissioners and establish park districts, Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conflict with the due process clause and present no federal question. 693 Carfer v. Caldwell, 200 U.S. 293, 297 (1906). 694 Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950). 695 Carey v. Piphus, 435 U.S. 247, 259 (1978). ‘‘[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.’’ Mathews v. Eldridge, 424 U.S. 319, 344 (1976). are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. 687 Non-Judicial Proceedings.—A court proceeding is not a requisite of due process. 688 Administrative and executive proceedings are not judicial, yet they may satisfy the due process clause. 689 Moreover, the due process clause does not require de novo judicial review of the factual conclusions of state regulatory agencies, 690 and may not require judicial review at all. 691 Nor does the Fourteenth Amendment prohibit a State from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature. 692 Further, it is up to a State to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate. 693 The Requirements of Due Process.—Although due process tolerates variances in procedure ‘‘appropriate to the nature of the case,’’ 694 it is nonetheless possible to identify its core goals and requirements. First, ‘‘[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.’’ 695 Thus, the required elements of due process are those that ‘‘minimize substantively unfair or mistaken deprivations’’ by enabling persons to contest the basis upon which a State proposes to deprive them of VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00125 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1796 AMENDMENT 14—RIGHTS GUARANTEED 696 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); Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute). 697 Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793 (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). 698 Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). 699 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). 700 City of West Covina v. Perkins, 525 U.S. 234 (1999). 701 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). ‘‘Parties whose rights are to be affected are entitled to be heard.’’ Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863). 702 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). 703 Armstrong v. Manzo, 380 U.S. 545, 552 (1965) protected interests. 696 The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel. (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.’’ 697 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. 698 Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it. 699 Such notice, however, need not describe the legal procedures necessary to protect one’s interest if such procedures are otherwise set out in published, generally available public sources. 700 (2) Hearing. ‘‘[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.’’ 701 This right 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 . . . .’’ 702 Thus, the notice of hearing and the opportunity to be heard ‘‘must be granted at a meaningful time and in a meaningful manner.’’ 703 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00126 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1797 704 Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955). 705 Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 706 Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982). 707 Gibson v. Berryhill, 411 U.S. 564 (1973). Or, 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). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). 708 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). 709 Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies. 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. (3) Impartial Tribunal. Just as in criminal and quasi-criminal cases, 704 an impartial decision maker is an essential right in civil proceedings as well. 705 ‘‘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.’’ 706 Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only 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. 707 There is, however, a ‘‘presumption of honesty and integrity in those serving as adjudicators,’’ 708 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. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process. 709 The Court has also held that the official or personal stake that school board members had in a decision to fire teachers VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00127 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1798 AMENDMENT 14—RIGHTS GUARANTEED 710 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). 711 Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d). 712 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). 713 Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). 714RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 571 (1968–1970). 715 FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964). 716 The exclusiveness of the record is fundamental in administrative law. See §7(d) of the Administrative Procedure Act, 5 U.S.C. § 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). who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them. 710 (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.’’ 711 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 erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.’’ 712 (5) Discovery. The Court has never directly confronted this issue, but in one case it did observe in dictum that ‘‘where 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.’’ 713 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. 714 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization. 715 (6) Decision on the Record. While this issue arises principally in the administrative law area, 716 it is applicable generally. ‘‘[T]he VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00128 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1799 717 Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 718 397 U.S. 254, 270–71 (1970). 719 Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule 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, 424 U.S. 319 (1976), 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, the value of the f

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