The basic requirements of due process – focusing on the process due

1. The basic requirements of due process – focusing on the process due After Goldberg, the 2 critical requirements of due process are: • Adequate Notice (fleshed out on Tuesday) • Pre-deprivation opportunity to be heard – with some exceptions Mathews v. Eldridge – 3-factor balancing test to determine what process is due • What is the private interest affected by the termination? • What is the risk of erroneous deprivation if current procedures are used and what is the utility of additional safeguards? • What is the government’s interest in avoiding significant procedural burdens?

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 of the “hearing” 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) • Court also looks to existing pre-deprivation (and post-deprivation) procedures to determine whether they are good enough &/or whether more will help Ps (Eldridge)

3. 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 • Especially true after Eldridge and its intimation that even the most minimal “consultation” might satisfy due process

4. What is a deprivation of a protected interest? • Paul v. Davis/Ingraham v. Wright • SCT held that availability of libel/negligence lawsuit for Ps meant that gov’t could act (post comments/paddle student) w/out holding pre-deprivation hearing • BUT these kinds of holdings are pretty rare – especially if actually deprives an individual of a property interest • Ex: If gov’t stops your utilities w/out notice/opportunity to challenge, your ability to sue for a remedy doesn’t displace gov’ts obligation to give you a “hearing” before deprivation • What’s really at issue in cases like Paul & Ingraham: • Random, negligent acts, general defamatory comments, or random failures to follow procedure by individual gov’t actors simply do not amount to “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. Due process, 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 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 the board was 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 involved (50%)? • 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 – impartiality & 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 due to pre-judgment. SEC commissioner made a public speech while the particular 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, impartiality & prejudgment – Cinderella Finishing Schools (a less obvious case) • FTC filed complaint charging CFS with false/deceptive ads. ALJ held hearing & recommended dismissal of charges. Counsel for FTC appealed to full Commission. • Pending that appeal, FTC Cmm’r Dixon 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? • In Slide 9, specific entity was identified & accused of being a “violator” along w/ argument it should be barred from activity • Specific facts & cases appear to have been prejudged • Did this happen 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 (p. 640 n.10) court discusses “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 (5) as legislators before they were gov’t officials • These statements often seem to run counter to any given litigants’ interests • But courts are reluctant to overturn a proceeding due to lack of an impartial decision maker in an adjudication unless there is clear evidence as 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.

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 mindon 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, detached adjudicator isn’t appropriate for rulemakings 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 agencies perform several functions: investigation, prosecution & adjudication (Gibson, CF Schools, Withrow). To what extent does the mere combination of different functions violate due process? • This is a big issue for professional self-regulation • Most doctors, health professionals, accountants, and lawyers, have systems that essentially self-police. • Professionals sit on a licensing board (e.g., Gibson) • They adopt the rules applicable to getting the license & the rules of professional conduct necessary to keeping 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 re due process & 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 (stemming from a realistic appraisal of human weakness/psych tendencies). • Realistically, “actual bias” in due process cases has been pretty hard to show absent prejudgment of a case, pecuniary interest, or hostility/bias against particular party • More next week on how statutes require some separation of functions even if the Constitution doesn’t