Monday, September 29, 2014

Due Process Reminders and Questions

Due process is a term that is thrown about in the legal profession. There are two kinds of due process, procedural and substantive. Each are products in part of the Fifth and Fourteenth Amendments to the Constitution. The Fifth gets little reference for this in the television-laced pop culture where it is better known for its prohibition on "self-incrimination."

The Fifth Amendment provides that no "person" shall be "deprived of life, liberty, or property, without dues process of law." The Fourteenth Amendment is more specific to the states and provides that no state may "deprive any person of life, liberty, or property without due process of law." The Fourteenth also has the prohibition from denial of "equal protection of the laws," which language is absent from the Fifth. 

The Fifth was adopted as part of the first ten amendments ratified, commonly referred to as "The Bill of Rights." These were ratified on December 15, 1791. The Fourteenth was ratified about 70 years later, following the Civil War, on July 9, 1868.  The Thirteenth, Fourteenth and Fifteenth are commonly referred to as "the Civil War Amendments." There was a long period in our history when the Bill of Rights was seen as protecting us only against the Federal government. Thus, the specific reference to the "state" in later amendments. You could study the interaction of the Fifth and Fourteenth for a career. 

Substantive due process is a term that is said to trace its roots to English common law. As such, a legal construct older than the Constitution to which we ascribe it. In essential terms, impairments of liberty are considered to be violations of "substantive due process." This is a topic we are likely to ear about when someone is incarcerated, or their travel or privacy are constrained or compromised.  

Procedural due process is a bit easier to understand, but perhaps as difficult to quantify. Procedural due process is essentially notice of proceedings and an opportunity to be heard. That is, everyone affected by a proceeding should know that a decision is going to be made, and everyone should have some opportunity to participate in the decision. This simple description begs the more difficult question that is raised, how much process is due? 

I addressed some of this several years ago in the Spring 2012 News and 440 Report, in an article titled Process, How Much is "Do." which can be accessed through the Florida Bar Workers' Compensation Section website, Unfortunately, I have been unsuccessful directly linking to the newsletters there. 

Due process is often mentioned or raised in litigation, and the question can be how much process is due, thus the tongue-in-cheek play on words in the 2012 article. How much process is due? A valid question that might be a consideration of issues such as how many witnesses may counsel call, how much time may counsel have, how much documentary evidence may counsel submit, and the list goes on. 

The answer to "how much" is not easy to define. Essentially, the United States Supreme Court has answered this with the response "enough." This may seem about as helpful as "it depends," but that is the measure that is due, "enough."

A seminal case on procedural due process is Mathews v. Eldridge. In 1976, the Court considered how much process is due and established a "balancing test" that has been used since. The Court said that "due process is flexible and calls for such protections as the particular situation demands." (citing Morrissey v. Brewer). Thus three factors (the following are quotes) were deemed worthy of consideration:

(1) the private interest that will be affected by the official action; 
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional procedural safeguards; and 
(3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. 

This balances risk to the person's rights versus the cost of providing the process. The less important the interest affected, the less process is due, and conversely as the importance of the interest increases so should the volume process provided. In the end, it seems that we are not all entitled to a full measure of process in all instances, regardless of the nature of the interest which we seek to protect. Just try to get a jury trial on a speeding ticket sometime.

Mathews is interesting for another reason, but it is rarely discussed. Though it is often cited for its legal standard on due process, it is also a case about disability. 

Mathews was a recipient of social security disability benefits, whose entitlement was stopped in 1972. He challenged the authority of the Social Security Administration to halt his benefits without affording him an evidentiary hearing. At that time, there was precedent (Goldberg v. Kelly) that held termination of welfare benefits without an evidentiary hearing was in fact a deprivation of substantive due process. 

The Mathews Court distinguished Goldberg on various grounds. Perhaps the most instructional being that the SSA termination process required that the "disability recipient" was provided with written explanation of any "tentative assessment" that disability payments should end, and was "given an opportunity to submit additional arguments and evidence." Essentially, that the opportunity to respond in writing, and the full access to "the information relied on by the state agency," was sufficient due process in this context. 424 U.S. at 322.

In affirming that Mathews had no such right to an evidentiary hearing before termination of his disability benefits, the Court made some other interesting observations which I have pondered over the years, as I have taught Constitutional Law. 

The Court supported its decision saying that "the decision to discontinue disability benefits will normally turn upon routine, standard, and unbiased medical reports by physician specialists "(citing Richardson v. Perales).

The Court also said that "eligibility for disability payments is not based on financial need, and although hardship may be imposed upon the erroneously terminated disability recipient, his need is likely less than the welfare recipient." In other words, the Court seems to conclude that people on welfare have had to prove they need support, but injured people have not been put to that proof. 

This was cited as a justification for the conclusion that "there is less reason than in Goldberg to depart from the ordinary principle that something less than an evidentiary hearing is sufficient." 424 U.S. at 339. 

Are reports by physician specialists "routine, standard, and unbiased?" Or is it appropriate that these reports be subjected to cross-examination? Is it logical that someone disabled has less of a need for financial support than someone who, while able, is not working? Is the distinction not in the need for support, but in the fact that need is previously proven in the welfare example?

Mathews makes for interesting reading. Understanding the extent of due process is positive for everyone, and a good reminder even for those who studied it in law school. 

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