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1972); Goss v. Lopez, 419 U.S. 565 (1975) 762 400 U.S. 433 (1971). 763 424 U.S. 693 (1976). 764 Here the Court, 424 U.S. 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.’’ 424 U.S. 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. See discussion supra. And see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 226 (1991); 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). The Court also appeared to have expanded the notion of ‘‘liberty’’ to include the right to be free of official stigmatization, and found that such threatened stigmatization could in and of itself require due process. 761 Thus, in Wisconsin v. Constantineau, 762 the Court invalidated a statutory scheme in which persons could be labeled ‘‘excessive drinkers,’’ without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity. But, in Paul v. Davis, 763 the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one’s reputation also resulted in loss of a statutory entitlement. In Davis, the police had included plaintiff’s photograph and name on a list of ‘‘active shoplifters’’ circulated to merchants without an opportunity for notice or hearing. But the Court held that ‘‘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.’’ 764 Thus, unless the government’s official defamation has a specific negative effect on an entitlement, such as the denial to ‘‘excessive drinkers’’ of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process. A number of liberty interest cases which involve statutorily created entitlements involve prisoner rights, and thus are dealt with more extensively in the section on criminal due process. How- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00137 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1808 AMENDMENT 14—RIGHTS GUARANTEED 765 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976). 766 445 U.S. 480 (1980). 767 Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973). 768 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); 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). ever, they are worth noting here. In Meachum v. Fano, 765 the Court held that a state prisoner was not entitled to a fact-finding 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. As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any state of facts, and no hearing was required. But in Vitek v. Jones, 766 a state statute 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. Interestingly, however, the Vitek Court also held that 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, 767 a liberty interest that is separate from a statutory 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. 768 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 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00138 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1809 769 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). 770 Sandin v. Conner, 515 U.S. 472, 484 (1995) (solitary confinement not atypical ‘‘in relation to the ordinary incidents of prison life’’). 771 Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912). 772 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). 773 United States v. Florida East Coast Ry., 410 U.S. 224 (1973). a particular outcome if substantive predicates are found. 769 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. 770 Proceedings in Which Procedural Due Process Need Not Be Observed.—While due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries, 771 there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it 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.’’ 772 Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation. 773 On the other hand, if a regulation, sometimes denominated an ‘‘order,’’ is of limited application, that is, it affects 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 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00139 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1810 AMENDMENT 14—RIGHTS GUARANTEED 774 410 U.S. 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). 775 ‘‘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.’’ Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246– 47 (1944). 776 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). 777 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928). 778 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). must be determined by evaluation of the various factors discussed below. 774 One such factor is whether agency action is subject to later judicial scrutiny. 775 In one of the initial decisions construing the due process clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector’s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. 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. 776 In more modern times, the Court upheld a procedure under which a state banking superintendent, after having taken over a closed bank and issuing notices to stockholders of their assessment, could issue execution for the amounts due, subject to the right of each stockholder to contest his liability for such an assessment by an affidavit of illegality. 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. 777 It is a violation of the due process clause for a State to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered. 778 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. VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00140 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1811 779 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). 780 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) 781 Saunders v. Shaw, 244 U.S. 317 (1917). 782 ‘‘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.’’ Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). ‘‘The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894–95 (1961). 783 424 U.S. 319, 335 (1976). The person may be remitted to other actions initiated by him 779 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. 780 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. 781 When Process Is Due.—The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests. 782 The currently prevailing standard is that formulated in Mathews v. Eldridge, 783 which concerned termination of Social Security benefits. ‘‘Identification 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.’’ VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00141 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1812 AMENDMENT 14—RIGHTS GUARANTEED 784 397 U.S. 254, 264 (1970). 785 Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976). 786 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. 787 395 U.S. 337 (1969) 788 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 Court by Justice White emphasizing the wages aspect of the earlier case). 789 407 U.S. (1972). The termination of welfare benefits in Goldberg v. Kelly, 784 which could have resulted in a ‘‘devastating’’ loss of food and shelter, had required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits 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. 785 Application of the Mathews standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring pre-deprivation hearings. Newer cases, however, look 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.’’ 786 Thus, Sniadach v. Family Finance Corp., 787 which mandated pre-deprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe. 788 Fuentes v. Shevin, 789 which struck VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00142 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1813 790 Fuentes was an extension of the Sniadach principle to all ‘‘significant property interests’’ and thus mandated pre-deprivation hearings. 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 419 U.S. at 616–19 (Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart dissenting). 791 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). 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.’’ 501 U.S. at 11. 792 Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and 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). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of ‘‘no state action,’’ but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. 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). down a replevin statute which authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited, 790 so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process. 791 Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only 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 opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor. 792 Similarly, applying the Mathews v. Eldridge standard 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, the avoidance of admin- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00143 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1814 AMENDMENT 14—RIGHTS GUARANTEED 793 Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), and 416 U.S. 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. See also 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). 794 Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony). 795 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). 796 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 797 481 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. istrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful. 793 Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient. 794 In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small. 795 In a case dealing with 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. 796 In Brock v. Roadway Express, Inc., 797 a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a ‘‘whistle-blower’’ employee without an opportunity for a full evidentiary hearing, 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. 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 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00144 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1815 798 For analysis of the case’s implication

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