The basic requirements of due process – a summary & some cleanup

1. The basic requirements of due process – a summary & some cleanup The 2 critical requirements of due process are: • Notice – more in a minute • Pre-deprivation opportunity to be heard – with some exceptions Re Notice: • Notice must be adequate re timing – i.e., provides enough time for P to prepare opportunity to be heard – case-by-case determination re adequacy • Must be adequate re to whom directed – objective test • Is the method of notification “reasonably calculated under all the circumstances to provide actual notice to the person(s) whose rights are being adjudicated?”

2. Basic requirements of due process – opportunity to be heard Pre-deprivation opportunity to be heard: • Can take many forms: • informal consultation with officials • written appeal after access to evidence • oral hearing w/ informal testimony • The form required depends on how the Eldridge factors balance in a particular case • Process required increases as the balance tips in favor of the private interest (Goldberg) • Nature of existing procedures & post-deprivation procedures affects whether due process is satisfied (Eldridge)

3. Basic requirements of due process – opportunity to be heard – emergency exception • If holding a hearing would endanger public health or is unrealistic due to some other emergency, then pre-deprivation hearing is unnecessary • Example – seizing tainted meat • Note - post-deprivation hearing still required • If it’s possible to have even the most truncated pre-deprivation hearing, it’s better to do so as a pragmatic matter – especially if that’s what non-emergency procedures contemplate • But sometimes emergency deprivation is unavoidable

4. What is a deprivation of a protected interest? • Paul v. Davis/Ingraham v. Wright – common law remedies available for gov’t wrong avoid need for hearing • Availability of libel/negligence lawsuit meant that gov’t could act w/out holding pre-deprivation hearing • BUT (realistically) courts rarely hold that ability to sue for damages/injunction means that a prior hearing is unnecessary if gov’t actually deprives an individual of a property interest • Ex: gov’t stops your utilities w/out notice/informal hearing, availability of lawsuit doesn’t mean that deprivation didn’t require a hearing • What’s really at issue in cases like Paul & Ingraham: • Random, negligent acts, general defamatory comments, or random failures to follow procedure simply aren’t “deprivations” for purposes of due process

5. Due process & the right to an impartial decision maker in adjudications • Goldberg v. Kelly: • An impartial decision maker is an “essential” element of due process • How can that “impartiality” be compromised? • Self-interest • Pre-judgment • Combination of Functions?

6. Impartiality & self-Interest • An adjudicator with a personal interest in the outcome of a decision is not impartial • Key Q: when is the adjudicator’s personal interest sufficient to compromise their impartiality • Tumey v. Ohio: Mayors sat as judges in criminal prosecutions. Statutes allowed them to assess fines/keep costs of case as compensation. • SCT – mayor/judges’ direct, pecuniary interest in outcome of cases violates due process – temptation is too great • Ward v. Monroeville: Statutes allowed mayors to sit as judges. Fines assessed went into villages’ coffers. • SCT – Although mayors don’t have direct financial interest, their financial interest in city’s well-being may create “temptation.” Self-interest violates due process

7. Impartiality & self-interest: Gibson v. Berryhill • Alabama law amended or repealed existing law (§§ 210/211) so that corp’s practicing optometry were no longer allowed to do so. • AOA (composed entirely of non-corp optometrists) filed charges with Ala. Bd. Of Opt. against optometrists employed by corps. • Charges alleged that optometrists engaged in unprofessional conduct by accepting “unlawful” employment with corp. Sought revocation of accused optometrists’ licenses • Board then filed own suit in federal court (with similar allegations) seeking injunction preventing Lee Optical from practicing optometry • After winning in DCT, Board proceeded with AOA charges – optometrists countered with lawsuit claiming that the statutory procedures violated due process.

8. Gibson v. Berryhill – why was the board not impartial • SCT affirmed lower courts finding that due process violated • Findings • Bd. comprised entirely of independent optometrists • Half of the optometrists in the State were employed by corps • Bd’s success only benefits independent optometrists who sat on the Bd. • Thus, the Bd. was biased (not impartial) • What factors are critical to the ruling? • Is it that the state so recently changed the law to forbid corp. optometry? • Is it that the Bd. is entirely made of independent optometrists? • Is it the number of corp-employed optometrists? • What if only 10% of optometrists had been employed by corps? Should courts presume the Board is biased or is the financial interest of the Board too attenuated? • Or do the issues coalescence to make this a “bias/impartiality” case?

9. Due process - prejudgment • Standard for recusal due to prejudgment – Cinderella Finishing Schools (p. 641): • Agency member must recuse themselves when a disinterested observer would conclude that the member has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it. • Example: SEC order permanently barring petitioner from engaging in securities transactions was set aside because an SEC commissioner made a public speech while proceedings were pending before the commission that • identified petitioner • claimed that he could “appropriately be termed a violator” and • claimed that “his bar from association with other broker dealers should be made permanent.”

10. Due process & prejudgment – Cinderella Finishing Schools (a less obvious case) • FTC filed complaint charging CFS with false & deceptive ads. ALJ held hearing where it recommended dismissal of charges. Counsel for FTC appealed to full Commission • Pending appeal to the FTC, Cmm’r Dixon (who would be hearing appeal) gave a speech to a newspaper ass’n where he said: • “How about the ethics on the business side of the paper? What standards are maintained on advertising acceptance? . . . What about carrying ads that offer college educations in five weeks, fortunes by raising mushrooms in the basement, getting rid of pimples with a magic lotion, or becoming an airline’s hostess by attending charm school? . . . Granted that newspapers are not in the advertising policing business, their advertising managers are savvy enough to smell deception when the odor is strong enough.”

11. Cinderella Finishing Schools (a less obvious case) - continued • D.C. Cir. found prejudgment. Does this fall on the wrong side of the standard? Is it as bad as the example in slide 9? • Slide 9 – specific entity was identified and claimed to have been a “violator” with the argument that it should be barred from activity • That seems to be enough to say specific facts & situations appear to have been prejudged • But is that what happened in CF Schools? Was Dixon’s speech particular to the school? Was he clearly prejudging facts/proceedings or was he talking generally about a policy matter – i.e., general problem w/ false & deceptive ads. Is it clear he couldn’t judge specific evidence fairly? • Note that p. 640 n.10 talks about the “reasonable inferences” a disinterested observer could draw from remarks – does that make the issue even more complicated by allowing observers to “guess” at what they think the remarks mean

12. Due process – prejudgment (a wrap-up) • “Pre-judgment” cases are decided based on extrinsic evidence – i.e., an agency official’s statements • LOTS of agency officials make LOTS of statements (1) to Congress, (2) in newspaper interviews, (3) in speeches, (4) in scholarly or other writings or as legislators before they were gov’t officials • These statements can seem to run counter to any given litigants’ interests • But courts are pretty reluctant to overturn a proceeding due to lack of impartial decision maker in an adjudication unless there is clear evidence like in the example in Slide 9. • So, CF Schools uses the right standard but the facts there are a bit iffy as far as the ruling goes – may have something to do with the history of Cmmr Dixon and the DC Circuit.

13. Due process – prejudgment & rulemaking (a comparison w/ adjudication) • Standard: An agency official engaged in rulemaking is subject to recusal for bias only when there is “clear & convincing evidence showing that she has an unalterably closed mind on matters critical to the disposition of the proceeding.” • This standard is much harder to meet than the one for adjudications. Why? • The view of a neutral and detached adjudicator is not appropriate for rulemaking where administrators must “translate broad statutory commands into concrete social policies. If an agency official is to be effective he must engage in debate and discussion about the policy matters before him. . . . “[I]nformal contacts between agencies and the public are the ‘bread & butter’ of the process of administration.” Assn of Nat’l Advertisers v. FTC (Casebook, pp. 466)

14. Due process – combination of functions • Many cases involve agencies that perform several functions, such as investigation, prosecution & adjudication (Gibson, CF Schools, Withrow). To what extent does the mere combination of different (seemingly incompatible) functions violate due process? • This is a big issue for professional self-regulation • Most doctors, health professionals, accountants, and especially lawyers, have systems that essentially self-police. • Professionals usually sit on a licensing board (e.g., Gibson) • They adopt the rules applicable to getting the license & the rules of professional conduct necessary to keep the license • They investigate when allegations of violations occur • They sit in judgment when adjudications/hearings are held

15. Withrow v. Larkin (p. 643) – the law on combination of functions • SCT found no presumption of due process violation from combination of functions within an agency that investigated and adjudicated professional responsibility violations • Rather, P claiming due process violation must (1) overcome presumption of honesty/integrity of adjudicators, and (2) show risk of actual bias/prejudgment from circumstances of particular case (from a realistic appraisal of human weakness/psych tendencies). • Realistically, “actual bias” has been pretty hard to show absent prejudgment or actual bias More next week on how statutes provide for some separation of functions even if the Constitution doesn’t require it