Fourteenth Amendment, Section 1 — Procedural Due Process: Civil Cases

Amdt14.S1.5.4.1 Overview of Procedural Due Process in Civil Cases

If a state seeks to deprive a person of a protected life, liberty, or property interest, the Fourteenth Amendment’s Due Process Clause requires that the state first provide certain procedural protections.¹ The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.² Fifth Amendment due process case law is therefore relevant to the interpretation of the Fourteenth Amendment.³

The Court first addressed due process in the 1855 Fifth Amendment case Murray’s Lessee v. Hoboken Land and Improvement Co.⁴ In Murray’s Lessee, the Court held that it would determine (independently from Congress) whether the government had provided due process by evaluating whether the statutory process conflicted with the Constitution and, if not, whether it comported with “those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”⁵ In the 1884 Fourteenth Amendment case Hurtado v. California, the Court held that a process could be judged based on whether it had attained “the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.”⁶ To hold that only historical, traditional procedures can constitute due process, the Court said, would render the law “incapable of progress or improvement.”⁷ The Supreme Court articulated the modern test for what process is required before the government may invade a protected interest in the 1976 case Mathews v. Eldridge.⁸

As a general matter, the Supreme Court has held that the constitutional requirement of procedural due process allows for variances in procedure “appropriate to the nature of the case.”⁹ Nonetheless, the Court’s decisions have identified key goals and requirements of procedural due process that apply in many circumstances. The Court has explained that “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”¹⁰ Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.¹¹

The core requirements of procedural due process are notice¹² and a hearing¹³ before an impartial tribunal,¹⁴ though specific requirements in each case vary based on the particular interests at stake.¹⁵ Due process may also require other procedural protections such as an opportunity for confrontation and cross-examination, discovery, a decision based on the record, or the opportunity to be represented by counsel.¹⁶ As long as the states provide adequate procedural protections, they possess significant discretion to structure courts and regulate state judicial proceedings,¹⁷ set statutes of limitations,¹⁸ and specify burdens of proof or evidentiary presumptions.¹⁹ Except as otherwise noted, the following essays focus on procedural due process requirements in civil and administrative proceedings. Later essays discuss procedural due process requirements in criminal cases.²⁰

Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge

The requirements of due process depend on the nature of the interest at stake and the weight of that interest balanced against the opposing government interests.¹ The Supreme Court articulated the current standard for determining what process is required before the government may impair a protected interest in the 1976 case Mathews v. Eldridge.² The Mathews Court explained:

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.³

Application of this standard is highly fact-dependent, as Mathews itself demonstrated. Mathews concerned termination of Social Security benefits. The Mathews Court compared the process required in the case before it with what was required in an earlier case involving termination of welfare benefits, Goldberg v. Kelly.⁴ The termination of welfare benefits in Goldberg, which affected “persons on the very margin of subsistence” and could have resulted in the challenger’s loss of food and shelter, had required a pre-deprivation hearing. By contrast, the Court held, the termination of Social Security benefits in Mathews required less protection because disability benefits are not based on financial need and a terminated recipient could apply for welfare if needed.⁵ Moreover, while the Court had found a significant risk of erroneous deprivation in Goldberg, it found that the determination of ineligibility for Social Security benefits more often turns on routine and uncomplicated evaluations of data, reducing the likelihood of error. Finally, the Court noted that the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, the Court concluded that due process was satisfied by a post-termination hearing with full retroactive restoration of benefits if the claimant prevails.⁶

While more recent cases often cite Mathews for the test the Court announced in that case, other roughly contemporaneous cases also show changes in the Court’s approach to procedural due process in the 1970s. For instance, in cases involving debtors and installment buyers, the Court shifted its approach around the time of the Mathews decision, generally requiring less process before money or property could be seized. Earlier cases had focused upon the interests of the holders of the property in not being unjustly deprived of goods and funds in their possession and had thus leaned toward requiring pre-deprivation hearings. By contrast, newer cases look to the interests of creditors as well. In one 1974 case, the Court explained: “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.”⁷

To illustrate, the 1969 case Sniadach v. Family Finance Corp. mandated pre-deprivation hearings before wages could be garnished.⁸ The Court appears to have limited Sniadach to instances when wages, and perhaps certain other basic necessities, are at issue and the consequences of deprivation would be severe.⁹ The 1972 case Fuentes v. Shevin struck down a replevin statute that authorized the seizure of household goods purchased on an installment contract upon the filing of an ex parte application and the posting of bond.¹⁰ The Court has also limited that case, holding that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.¹¹ 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.¹²

The Court has applied Mathews in a broad range of contexts. Applying the standard in the context of government employment, the Court considered the interest of an employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination and concluded that due process requires some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, including an award of back pay if the employee is successful.¹³ Where an adverse employment action does not rise to the level of termination of employment, the governmental interest is significant, and reasonable grounds for such action have been established separately, the Court has held that a prompt hearing held after the adverse action may be sufficient.¹⁴

In Brock v. Roadway Express, Inc., a plurality of the Court applied a similar analysis to governmental regulation of private employment, determining that an agency may order an employer to reinstate a whistleblower 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.¹⁵ The principal difference from the Mathews test was that 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.¹⁶

In other cases, the government may dispense with hearings providing even minimum procedures when establishing grounds for a deprivation of a protected interest is so pro forma or routine that the likelihood of error is very small.¹⁷ In a case dealing with state agency’s negligent 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.¹⁸

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David, a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the City.¹⁹ When he subsequently sought to challenge the imposition of the impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. The Court also considered the fact that a thirty-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would impose an administrative burden on the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.²⁰ That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction. The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,”²¹ concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.”²² Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;²³ (2) the burden of proving one’s innocence by clear and convincing evidence unacceptably risked erroneous deprivation of those funds;²⁴ and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.”²⁵ As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.²⁶

In other areas, the balancing standard of Mathews has resulted in states having greater flexibility in determining what process is required. For instance, when a state alters previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.²⁷ Thus, in considering corporal punishment in public schools, the Court held that the existence of common-law tort remedies for wrongful or excessive punishment, plus the context in which the punishment was administered (i.e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonable punishment), reasonably assured the probability that a child would not be punished without cause or excessively.²⁸ The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.²⁹

The Court has required greater due process protection against property deprivations resulting from operation of established state procedures than those resulting from random and unauthorized acts of state employees.³⁰ Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is the state system itself that destroys a complainant’s property interest.³¹ Although the Court briefly entertained the theory that a negligent (i.e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,³² the Court subsequently overruled this holding, stating that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”³³

In rare and extraordinary situations where summary action is necessary to prevent imminent harm to the public and the private interest infringed is reasonably deemed to be of less importance, the Court has held that the government can take action with no notice and no opportunity to defend, subject to a later full hearing.³⁴ Examples—most of which predate Mathews—include seizure of contaminated foods or drugs or other such commodities to protect the consumer,³⁵ collection of governmental revenues,³⁶ and the seizure of enemy property in wartime.³⁷ Citing national security interests, in a 1961 case the Court upheld an order issued without notice and an opportunity to be heard that excluded a short-order cook employed by a concessionaire from a Naval Gun Factory.³⁸ While the Court was ambivalent about a right-privilege distinction, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the government’s interest in conducting a high-security program.³⁹ In the 1979 case Mackey v. Montrym, the Court applied the Mathews test and upheld a Massachusetts statute that mandated suspension of a driver’s license because he refused to take a breath-analysis test upon arrest for drunk driving.⁴⁰ The Court cited pre-Mathews cases involving health and safety measures for the proposition that the Court has “traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety.”⁴¹

Amdt14.S1.5.4.3 Notice of Charge and Due Process

The Supreme Court has explained that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”¹ The notice requirement may include an obligation to take “reasonable followup measures” that may be available upon learning that an attempt at notice has failed.² In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.³ Ordinarily, service of notice must be reasonably structured to assure that the person to whom it is directed receives it.⁴ However, the notice need not describe the legal procedures necessary to protect one’s interest if the procedures are otherwise set out in published, generally available public sources.⁵

While due process often requires the government to provide a person with notice and an opportunity for a hearing before depriving the person of a protected interest,⁶ there are some circumstances in which the Court has held those procedural protections are not required.⁷ For instance, persons adversely affected by a law cannot challenge the law’s 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.⁸ Similarly, when an administrative agency engages in a legislative function, for example by drafting regulations of general application, it need not hold a hearing prior to promulgation.⁹ On the other hand, if a regulation affects an identifiable class of persons, the Court employs a multi-factor analysis to determine whether notice and hearing is required and, if so, whether it must precede such action.¹⁰

Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing

As a general matter, procedural due process requires an opportunity for a meaningful hearing to review a deprivation of a protected interest.¹ The Supreme Court has held that “some form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”² This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment.”³ Thus, the notice of hearing and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner.⁴ However, the type of hearing required, and when the hearing must occur, depend on the specific circumstances at issue.

The Court has held that it is a violation of due process 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.⁵ However, due process does not necessarily require affording a party the opportunity to present every available defense before entry of judgment. A person may be remitted to other actions initiated by him,⁶ or an appeal may suffice. Accordingly, in one case the Court held that a company objecting to the entry of a judgment against it without notice and an opportunity to be heard on the issue of liability was not denied due process where the state provided the opportunity for a hearing on appeal from the judgment.⁷ Nor could the company show a denial of due process based on the fact that it lost the opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.⁸ On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, the Supreme Court held that the plaintiff was denied due process because he did not have an opportunity to introduce evidence in rebuttal to testimony that the trial court deemed immaterial but the appellate court considered material.⁹

In interpreting the analogous Due Process clause of the Fifth Amendment, the Court has held that due process does not require a trial-type hearing in every conceivable case of governmental impairment of private interest. For instance, the Court held that the summary exclusion on security grounds of a concessionaire’s cook at the Naval Gun Factory, without hearing or advice as to the basis for the exclusion, did not violate due process.¹⁰ In Hannah v. Larche, the Court upheld rules of procedure adopted by the Civil Rights Commission, under which state electoral officials and others accused of discrimination were not apprised of the identity of their accusers or accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings.¹¹ In upholding the procedures, the Court opined that the Commission acts solely as an investigative and fact-finding agency and makes no adjudications. It further noted that additional procedural protections have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations that do not determine private rights.

With respect to actions taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before a final order becomes effective.¹² In Bowles v. Willingham, the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying that “where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires.”¹³ But in another case where the National Labor Relations Board undertook to void an agreement between an employer and a union after consideration of charges brought against the employer by an independent complaining union, the Court held that the union that formed the agreement was entitled to notice and an opportunity to participate in the proceedings.¹⁴ Although a taxpayer must be afforded a fair opportunity for a hearing in connection with the assessment of taxes,¹⁵ collection of taxes through summary administrative proceedings is lawful if the taxpayer is later afforded a hearing.¹⁶

When the Constitution requires a hearing, it requires a fair one, held before a tribunal that meets currently prevailing standards of impartiality.¹⁷ A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to respond to them.¹⁸ In administrative proceedings, a variance between the initial charges and the agency’s ultimate findings will not invalidate the proceedings where the record shows that there was no misunderstanding as to the basis of the complaint.¹⁹ The admission of evidence that would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.²⁰ An administrative hearing may consider hearsay evidence, and hearsay may constitute by itself substantial evidence in support of an agency determination, provided that there are assurances of the underlying reliability and probative value of the evidence and the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them.²¹ However, a provision that an administrative body shall not be controlled by rules of evidence does not justify the issuance of orders without a foundation in evidence having rational probative force. Although the Court has recognized that in some circumstances a “fair hearing” implies a right to oral argument,²² it has refused to lay down a general rule that would cover all cases.²³

Amdt14.S1.5.4.5 Impartial Decision Maker

The Due Process Clause requires that the decision to deprive a person of a protected interest be entrusted to an impartial decision maker. This rule applies to both criminal and civil cases.¹ The Supreme Court has explained that the “neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law” and “preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.”²

There is a “presumption of honesty and integrity in those serving as adjudicators,” so the burden is on an objecting party to show a conflict of interest or some other reason for disqualification of a specific officer or for disapproval of an adjudicatory system as a whole. The Court has held that combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.³ The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not sufficient to disqualify them.⁴

Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In the 2009 case Caperton v. A. T. Massey Coal Co., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.”⁵ The Court added, however, that “the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.”⁶ In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’” there are “circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’”⁷ Those circumstances include “where a judge had a financial interest in the outcome of a case” or “a conflict arising from his participation in an earlier proceeding.”⁸

In judicial recusal cases, the Court has explained, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”⁹ In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.”¹⁰ The justice was elected, declined to recuse himself, and joined a 3-2 decision overturning the jury verdict. The Supreme Court, in a 5-4 opinion written by Justice Anthony Kennedy, concluded that there was “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”¹¹

Subsequently, in the 2016 case Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court who participated in a case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.¹² Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,”¹³ the Williams Court held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.”¹⁴ The Court based its holding, in part, on earlier cases that had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case.¹⁵ It reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,¹⁶ and took the view that the involvement of multiple actors in a case over many years “only heightens”—rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.”¹⁷ As a remedy, the Court remanded the case for reevaluation by the reconstituted Pennsylvania Supreme Court. Notwithstanding the fact that the judge in question did not cast the deciding vote, the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.¹⁸

Amdt14.S1.5.4.6 Additional Requirements of Procedural Due Process

Beyond the requirements of notice and a hearing before an impartial decision maker,¹ due process may also require other procedural protections such as an opportunity for confrontation and cross-examination of witnesses, discovery, a decision based on the record, or the opportunity to be represented by counsel.

With respect to confrontation and cross-examination of witnesses, the Supreme Court has held that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”² Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” a party’s right to show that it is untrue depends on the rights of confrontation and cross-examination. The Court has thus “been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.”³

With respect to discovery, the Court has held that criminal defendants have a due process right to discover exculpatory evidence held by the government⁴ but has not directly confronted the questions of whether and when due process requires discovery in civil or administrative proceedings. However, in one case the Court observed in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”⁵ Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference of the United States has recommended that all do so.⁶ There appear to be no cases, however, holding that they must.⁷

The Supreme Court has also held that due process requires decisions to be based on the record before the decision maker. Although this issue arises principally in the area of administrative law, it applies generally.⁸ The Court has explained that a decision maker’s conclusion “must rest solely on the legal rules and evidence adduced at the hearing. . . . [T]he decision maker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.”⁹

In some civil and administrative cases, due process requires that a party have the option to be represented by counsel.¹⁰ In the 1970 case Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.¹¹ In a subsequent case, the Court established a presumption that an indigent litigant does not have the right to appointed counsel unless his “physical liberty” is threatened.¹² The Court has also held the fact that an indigent litigant may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court considers the circumstances in individual cases, and may hold that appointment of counsel is not required if the state provides appropriate alternative safeguards.¹³

Amdt14.S1.5.4.7 Power of States to Regulate Procedures

In general, as long as parties receive sufficient notice,¹ an opportunity to defend their protected interests,² and any other required procedural safeguards,³ the Due Process Clause of the Fourteenth Amendment does not specify the particular forms of procedure to be used in state courts.⁴ The states may regulate the manner in which rights may be enforced and wrongs remedied,⁵ and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.⁶ Whether legislative action in such matters is deemed to be wise or proves efficient, whether it causes hardship for a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The Supreme Court has explained that the function of the Fourteenth Amendment is negative rather than affirmative⁷ and in no way obligates the states to adopt specific measures of reform.⁸

A state may impose certain conditions on the right to institute litigation. However, foreclosure of all access to the courts through imposition of financial barriers is subject to constitutional scrutiny and must be justified by a state interest of suitable importance. Thus, the Court has upheld a state law that denied access to the courts to persons instituting stockholders’ derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.⁹ The Court has also held that a state, as the price of opening its tribunals to a nonresident plaintiff, may impose the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff ’s attorney of record.¹⁰ For similar reasons, the Court did not deem arbitrary or unreasonable a requirement for a chemical analysis as a condition precedent to a suit to recover for damages to crops from allegedly deficient fertilizers, where other evidence was also allowed.¹¹ By contrast, where a state has monopolized the avenues for settling disputes between persons by prescribing judicial resolution, and where a dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to persons unable to pay its fees.¹²

Just as a state may condition the right to institute litigation, it may also establish terms for raising certain defenses. For instance, the Court has held that a state may validly provide that a person sued in a possessory action cannot bring an action to try title until after judgment is rendered and he has paid the judgment.¹³ A state may limit available defenses in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.¹⁴ A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents; the Court has held that no person has a vested right in such defenses.¹⁵ Similarly, a nonresident defendant in a suit begun by foreign attachment cannot challenge the validity of a statute that requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend, even if he has no resources or credit other than the property attached.¹⁶

Once a suit is underway, the amendment of pleadings is largely within the discretion of the trial court and, absent a gross abuse of discretion, there is no ground for reversal. Thus, in one case, the Court found no denial of due process in rendition of a foreclosure decree without leave to file a supplementary answer that sought to raise a meritless defense.¹⁷

The Due Process Clause allows states significant discretion in whether to provide for jury trials or appeals in civil cases. Unlike in criminal trials,¹⁸ the Court has not deemed jury trials essential to due process in state civil proceedings, and has not interpreted the Fourteenth Amendment to restrain the states in retaining or abolishing civil juries.¹⁹ Thus, the Court has upheld state laws abolishing juries in proceedings to enforce liens,²⁰ mandamus²¹ and quo warranto²² actions, and eminent domain²³ and equity proceedings.²⁴ States are also free to adopt innovations respecting selection and number of jurors. States may allow verdicts to be rendered by ten out of twelve jurors rather than a unanimous jury,²⁵ and may establish petit juries containing eight jurors rather than the conventional twelve.²⁶

If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.²⁷ But, if an appeal is afforded, the state must not structure it so as to arbitrarily deny to some persons the right or privilege available to others.²⁸

State legislatures and state courts have substantial discretion to allocate the costs of litigation and impose awards of damages or financial penalties. The Supreme Court has held that it is up to courts to determine what costs are allowed by law, and an erroneous judgment of what the law allows does not deprive a party of property without due process of law.²⁹ Nor does a statute providing for the recovery of reasonable attorney’s fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.³⁰

The Court has also upheld against due process challenge a statutory procedure whereby a prosecutor is adjudged liable for costs, and committed to jail in default of payment thereof, when the court or jury finds that he instituted the prosecution without probable cause and from malicious motives.³¹ Also, a state may permit harassed litigants to recover penalties in the form of attorney’s fees or damages as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons.³²

By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall be imprisoned and also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled, even if the defendant has made restitution.³³ The Court has explained that, whether the fine is understood as a penalty or punishment or a civil judgment, the convict is required to pay it as the result of his or her crime. On the other hand, when an appellant was held in contempt for frustrating enforcement of a judgment against it by refusing to surrender certain assets, the Court held that dismissal of an appeal from the original judgment was not a penalty for the contempt, but merely a reasonable method for sustaining the effectiveness of the state’s judicial process.³⁴

To deter careless destruction of human life, a state may allow punitive damages in actions against employers for deaths caused by the negligence of their employees,³⁵ and may also allow punitive damages for fraud perpetrated by employees.³⁶ Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.³⁷ Although the Excessive Fines Clause of the Eighth Amendment “does not apply to awards of punitive damages in cases between private parties,”³⁸ the Court has indicated that a “grossly excessive” award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is “reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.”³⁹ A court may determine the applicable limits by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff ’s actual or potential harm, and the legislative sanctions provided for comparable misconduct.⁴⁰ In addition, the Due Process Clause “forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties.”⁴¹

Amdt14.S1.5.4.8 Statutes of Limitations and Procedural Due Process

A statute of limitations is a law that imposes a time limit for bringing a case; once the statute of limitations expires, a person cannot pursue even an otherwise valid claim. The Supreme Court has imposed few due process limits on state laws that create, alter, or eliminate statutes of limitations for civil suits.¹

The Court has held that a statute of limitations does not deprive a person of property without due process of law, unless it applies to an existing right of action in a way that unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing statute of limitations, provided that the state allows a reasonable time for bringing an action after the passage of the statute and before the bar takes effect. What constitutes a reasonable period depends on the nature of the right and the particular circumstances.²

A state may also extend the time in which civil suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. The Court has held that the repeal or extension of a statute of limitations does not impose an unconstitutional deprivation of property on a debtor-defendant who previously might have invoked the statute as a defense. The Court explained, “A right to defeat a just debt by the statute of limitation . . . [is not] a vested right” protected by the Constitution.³ Accordingly, the Court has upheld against Fourteenth Amendment challenges to the revival of an action on an implied obligation to pay a child for the use of her property,⁴ a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,⁵ and a right of an employee to seek an additional award out of a state-administered fund on account of the aggravation of a former injury.⁶

However, when a right of action to recover property has been barred by a statute of limitations and title as well as real ownership have become vested in the possessor, the Court has held that any later act removing or repealing the statute of limitations would be void as attempting an arbitrary transfer of title.⁷ The Court has also held unconstitutional the application of a statute of limitation to extend a period that parties to a contract agreed should limit their right to remedies under the contract.⁸

Amdt14.S1.5.4.9 Burdens of Proof and Presumptions

State legislatures have the authority to establish presumptions and rules respecting the burden of proof in litigation.¹ However, the Supreme Court has held that the Due Process Clause forbids the deprivation of liberty or property upon application of a standard of proof too lax to ensure reasonably accurate fact-finding. The Court has opined that “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’”² With respect to presumptions, the Court has held that a presumption does not violate the Due Process Clause as long as it is not unreasonable and is not conclusive. A statute creating a presumption that is entirely arbitrary and operates to deny a fair opportunity to rebut it or to present facts pertinent to a defense is void.³ On the other hand, the Court has sustained legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact if there is a rational connection between what is proved and what is inferred.⁴

Applying the test laid out in Mathews v. Eldridge to determine what process is due in a particular situation,⁵ the Court has held that a standard at least as stringent as “clear and convincing” evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.⁶ Similarly, because parents’ interest in retaining custody of their children is fundamental, the state may not terminate parental rights by a preponderance of the evidence—the burden of proof to award money damages in an ordinary civil action—but must prove that parents are unfit by clear and convincing evidence.⁷ Furthermore, parental unfitness must be established affirmatively and may not be assumed based on some characteristic of the parent.⁸

For a time, the Court used what it called the “irrebuttable presumption doctrine” to curb legislative efforts to confer a benefit or to impose a detriment based on presumed characteristics of a person.⁹ In Stanley v. Illinois, the Court found invalid a construction of the state statute that presumed unmarried fathers to be unfit parents and prevented them from objecting to state wardship.¹⁰ The Court likewise struck down mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies based on a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.¹¹

In another case, the Court opined that a state may require that nonresidents pay higher tuition charges at state colleges than residents and assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, but held it was impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. Instead, the Due Process Clause required that the student have the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.¹² Similarly, the Court invalidated a food stamp program provision making ineligible any household with a member age eighteen or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps, holding that the provision created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.¹³ The rule that emerged from these cases was that the legislature may not presume the existence of a decisive characteristic based on a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that the legislature intended to reach.¹⁴

The Court limited the irrebuttable presumption doctrine in the 1975 case Weinberger v. Salfi, upholding a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse.¹⁵ Purporting to approve but distinguish prior cases, the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.¹⁶ The Court opined that extension of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”¹⁷

There is some uncertainty about the viability and scope of the irrebuttable presumption doctrine since Salfi, and the doctrine has rarely appeared on the Court’s docket in recent years.¹⁸ In Turner v. Department of Employment Security, decided after Salfi, the Court invalidated a statute making pregnant women ineligible for unemployment compensation for a period extending from twelve weeks before the expected birth until six weeks after childbirth.¹⁹ By contrast, in Usery v. Turner Elkhorn Mining Co., the Court held that a provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption.²⁰