Amdt5.4.4.1 Procedural Due Process in Non-Criminal Cases: Overview

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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.1 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.2 A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding.3 The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.4 In civil contexts, however, a balancing test is used that evaluates the government's chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.5

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.6 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.7 Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that 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.8

Non-Judicial Proceedings

A court proceeding is not a requisite of due process.9 Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.10 Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies,11 and may not require judicial review at all.12 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.13 Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.14

The Interests Protected: Life, Liberty and Property

The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s life, liberty or property is threatened.15 Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law.16 In the 1960s, however, the Court began a rapid expansion of the liberty and property aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The life interest, on the other hand, although often important in criminal cases, has found little application in the civil context.

Footnotes

  1.  Jump to essay-1Thus, 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).
  2.  Jump to essay-2Hagar 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).
  3.  Jump to essay-3See Medina v. California, 505 U.S. 437, 443 (1992).
  4.  Jump to essay-4Id.
  5.  Jump to essay-5See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See 137 S. Ct. 1249, 1255 (2017).
  6.  Jump to essay-6Twining 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.
  7.  Jump to essay-7Twining, 211 U.S. at 101.
  8.  Jump to essay-8Hurtado 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).
  9.  Jump to essay-9Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).
  10.  Jump to essay-10For 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).
  11.  Jump to essay-11Railroad 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).
  12.  Jump to essay-12See, 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 veterans' benefits).
  13.  Jump to essay-13State 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 v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conflict with the Due Process Clause and present no federal question.
  14.  Jump to essay-14Carfer v. Caldwell, 200 U.S. 293, 297 (1906).
  15.  Jump to essay-15Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite. Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).
  16.  Jump to essay-16For instance, at common law, one’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law, and only for offenses deemed by a legislative body to be particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that ownership, but it was a concept universally understood in Anglo-American countries.