Concept
Notice and Hearing
Procedural due process
Notice and Hearing
Once a protected interest is at stake and government has deprived the person of it, the second question from the opening of this chapter takes over: what process is due. The answer starts from a baseline that holds across nearly every setting. Some form of hearing is required before an individual is finally deprived of a property interest.1 Agencies must at minimum give some kind of notice and some kind of hearing, suited to the nature of the case, so that the person has a meaningful opportunity to present a side of the story.2 The two protections work as a pair. Notice tells the person that a decision is pending and what the government claims, since no one can contest facts they have never been told about, and a hearing before a neutral decisionmaker gives the person's account a chance to change the outcome. The baseline fixes the existence of these protections and leaves their form open, because the amount of process depends on the circumstances of the particular case.3 A letter and a written reply may satisfy it in one program and a trial-type hearing may be required in another, a variation the Mathews balancing test later in this chapter organizes. The next two subsections set out the baseline itself, beginning with what makes notice adequate.
Adequate Notice
Notice is the first half of the baseline, and its constitutional standard comes from Mullane v. Central Hanover Bank & Trust Co., which arose from a proceeding to settle a trustee's accounts, one that could cut off the beneficiaries' right to hold the trustee answerable for negligent or illegal handling of their interests and could reduce those interests through fees and expenses.4 Because the proceeding could deprive the beneficiaries of property, the Court held that notice and hearing had to meet the standards of due process, and it described an elementary and fundamental requirement for any proceeding that is to be accorded finality: 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."5 The reason for the requirement is that a hearing is worth nothing to someone who does not know it is taking place. A person who is told that a matter is pending can choose whether to appear or default, acquiesce or contest, and a person who is never told has lost that choice before any decision is made.6 Notice therefore comes first among the procedural protections, since every later protection depends on the person knowing there is something to contest.
The standard measures the reasonableness of the government's effort and does not require proof that the notice arrived. Two concerns pull in opposite directions, and the standard is shaped to respect both. A notice sent only to satisfy a formality protects no one, because "process which is a mere gesture is not due process."7 If the government could pick any method that met a formal rule, it would have every reason to pick the cheapest one whatever its chance of working, and the people with the most at stake would learn of the proceeding after it ended. On the other side, the state has its own interest in bringing matters to a final settlement, and the Court refused to adopt a reading of the Due Process Clause that would place impossible or impractical obstacles in the way.8 A rule demanding proof of actual receipt would be such an obstacle, because anyone could defeat a proceeding by ignoring the mail or moving without a word. The resulting test asks whether the means were reasonable when chosen, and a notice that never reached its target can still be adequate if the effort behind it was sound.9
Content comes first because nothing else can work if the notice does not say what the government is doing. The notice must be of such a nature as reasonably to convey the required information, and what is required varies with the setting.11 In a benefit termination, Goldberg required "timely and adequate notice detailing the reasons for a proposed termination," and New York met the content requirement by sending a letter and by having a caseworker discuss the precise questions about eligibility in a personal conference, a combination the Court thought probably the most effective way of communicating with recipients.12 A notice that leaves out the way to contest the action can fail on content. In Memphis Light, Gas & Water Division v. Craft, a municipal utility's notice threatening to end a customer's service was held inadequate because it did not spell out the procedural avenues by which a customer could protest.13 A general notice can still pass. In Atkins v. Parker, a form letter told food stamp recipients of a statutory change that could reduce or eliminate their benefits, and although it did not state each recipient's new benefit level, it gave a general awareness of the new law, so recipients could inquire and challenge the computations in their own cases.14
Timing asks whether the notice left enough time to act on it, since a warning that arrives after the chance to respond has passed gives the person nothing to choose. Mullane requires that the notice afford a reasonable time for those interested to make their appearance.15 Goldberg shows how the Court treats a fixed period. New York's regulations required that notice of the reasons reach the recipient at least seven days before the proposed effective date, and the Court declined to hold seven days constitutionally insufficient per se, while allowing that fairness might require a longer time in some cases.16 That qualification ties the time requirement to what the person needs in order to respond, and a number of days only approximates it. The defect in Goldberg lay elsewhere: the Court found the city's procedures fatally deficient because the recipient could not appear before the official who made the final decision, present evidence orally, or confront adverse witnesses, which belongs to the hearing sections below.17
Means is the component that gives the standard its bite. The method must be one that a person desirous of actually informing the absentee might reasonably adopt. A method is defensible either because it is in itself reasonably certain to inform those affected or, where conditions do not reasonably permit such notice, because it is not substantially less likely to bring home notice than the other feasible and customary substitutes.18 The beneficiaries in Mullane illustrate the failing side. The trustee relied on newspaper publication even for beneficiaries whose names and addresses were known, and publication is not what someone truly trying to inform them would use when mail is readily available.19 The second half of the test explains why publication can still suffice for persons whose whereabouts cannot be found with reasonable diligence, since for them no better method exists. Other methods have been tested the same way. The Court has held insufficient notice of a condemnation proceeding by publication in a local newspaper, and notice of a forcible entry and detainer (eviction) action by posting on the door of the tenant's apartment.20 By contrast, the Court has approved certified mail to a federal inmate who alleged that he never received the notice through the institution's mail system, and the Fifth Circuit upheld the Occupational Safety and Health Administration's service of a citation where an unsuccessful certified-mail effort was followed by next-day shipment through UPS.21
Those outcomes follow a pattern the Court has stated directly. Due process does not demand "heroic efforts" to deliver notice, and for that reason the Court scrutinizes notice by publication closely while generally upholding certified mail.22 The gradient has a structural explanation. Publication depends on the chance that the right person happens to read a particular newspaper, while mail is addressed to the person. The practical limit does not excuse ignoring facts the government actually has. In one case, mailing, posting, and publication together were held inadequate because town officials knew that the property owner was incompetent and had no guardian's protection.23 Mullane therefore calls for a case-by-case look at the totality of the circumstances, including any unusual fact the government knew.24
Two errors recur on exams. One is to ask whether the person actually received the notice, when the question is whether the government's method was reasonably calculated to inform that person given what the government knew. The other is to treat any mailed or published notice as automatically adequate, or the reverse, to read Mullane as requiring personal service in every case. Adequacy of notice also stands apart from the amount of process that follows, since the Goldberg notice was sound even though the procedures after it were not. Notice only opens the door, and the next subsection takes up the hearing that the notice exists to make possible.
A Meaningful Hearing
Notice exists to make a hearing possible, and the hearing is the second half of the baseline that nearly every deprivation requires. The Court has consistently held that some form of hearing is required before an individual is finally deprived of a property interest, and it states the fundamental requirement as the opportunity to be heard "at a meaningful time and in a meaningful manner."26 An opportunity to be heard is the chance to appear before a tribunal and present evidence and argument before government takes a right away.27 The word "opportunity" fixes the government's duty: it must make the hearing available, and whether the person appears is the person's own choice, just as a person told of a pending matter may decide to contest it or to default. The two qualifiers in the formula then do separate work.
A hearing comes at a meaningful time when it can still change the result. In Mathews v. Eldridge, Eldridge agreed that the review procedures available before the initial ineligibility determination became final would have been adequate if benefits had continued until after the evidentiary stage, so the whole dispute concerned what process was due before the initial termination.28 A hearing is held in a meaningful manner when its form lets the person actually present a side of the story, which is why the Court has said that the opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.29 The manner qualifier therefore varies from one setting to the next. Neither qualifier yet says which procedures a particular setting requires, and that question belongs to the Goldberg and Mathews sections below.
The hearing serves two purposes, and keeping them apart matters because later parts of this chapter turn on the difference. In Marshall v. Jerrico, Inc., the Court named "two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals."30 The first purpose is accuracy. Officials decide on files, reports, and secondhand accounts, and the person affected is usually the one who knows whether those materials are right, so a hearing puts the government's version of the facts in front of the one person able to correct it before the error costs something. The second purpose is participation, which is sometimes called the dignitary value of due process: respect for individuals calls for a chance to be heard by a neutral decisionmaker under fair procedures, and that value does not depend on who wins.31 A person who tells a side of the story and loses has been treated differently from one whose fate was settled without a word from them.
The two purposes usually travel together, but they can come apart. A procedure designed only to maximize accuracy, with careful review of records and no input from the affected person, might score well on the first purpose and fail the second. The balancing test taken up later in this chapter has drawn criticism on exactly this point, because it implies that procedures are to be judged by whether they promote or detract from accuracy, without regard to whether the process will likely be perceived as fair.32 A reader who holds both purposes in mind can see what that criticism is about when it arrives.
Both purposes depend on who listens. An impartial decisionmaker "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 at the same time "preserves both the appearance and reality of fairness."33 The mechanism is direct. An official who has already settled on the result will not credit what the hearing reveals, so the evidence presented cannot improve accuracy and the person's voice cannot influence anything, and the proceeding becomes the kind of empty gesture the notice cases also guard against. In Hamdi v. Rumsfeld the plurality required that a citizen held as an enemy combatant receive a fair opportunity to rebut the government's factual assertions before a neutral decisionmaker, and it left room for that decisionmaker to be a properly constituted military tribunal.34 The requirement attaches to the decisionmaker's neutrality, and the tribunal itself may take forms other than a court.
A hearing is owed only when there is something for it to decide. Because the purpose of a due process hearing is to resolve factual disputes, an individual is entitled to one only when there is disagreement on the facts relevant to the claim, a principle that matches the practice of granting summary judgment when no genuine dispute as to any material fact exists.35 The limit has two parts, a dispute and relevance. The dispute requirement follows from what a hearing does: once a person admits that the law applies, any fair procedure would by that admission end in a finding that it does, so the hearing could not change the result.36 The relevance requirement follows from the governing statute or rule, since the facts the person wants to establish must matter under the scheme the government is applying.37
Connecticut Department of Public Safety v. Doe shows both parts failing together. A man subject to a state sex-offender registry admitted the conviction that triggered the registry but demanded a hearing to prove he was not dangerous, and the Court unanimously rejected the claim because he was not contesting the factual basis for applying the law to him.38 Under the statute the prior conviction alone was enough, so his current dangerousness was not relevant to anything the state had to decide.39 Losing the hearing claim did not leave him without recourse, because he could still argue that the law burdens his liberty in violation of substantive due process or draws classifications that violate equal protection.40 The contrasting case is Bell v. Burson, where a state suspended the licenses of drivers involved in accidents unless they furnished security for a possible judgment, and the Court required a prior hearing on the probability of a judgment against the driver, a question of fault on which the licensee could offer a contrary account, though the hearing did not have to be a full adjudication of liability.41 A license suspension that rests only on the number of convictions already entered with full process falls on the Doe side of the line, because no disputed fact remains.42
The fourth step marks where this section ends and the next begins. A hearing can be a written exchange, an informal conversation, or a proceeding that closely approximates a trial, and the Court has described only one setting, welfare terminations, as requiring the last.43 Which form the Constitution demands depends on the circumstances of the particular case, a flexibility the Court tied to its three-factor weighing in Mathews.44 The usual exam error is to read "hearing" as shorthand for a trial, or to assume that any aggrieved claimant is owed one, when the first question is always whether a relevant fact is genuinely in dispute.