Also known as: notice and opportunity to be heard · procedural due process · due process hearing
Written by attorneys — see sources below.
A procedural safeguard required by the Due Process Clause before the government may deprive a person of life, liberty, or property. It ensures that affected individuals receive adequate information about the proceeding and a meaningful chance to present their case. The requirement applies whenever a protected interest is at stake.
Nyah Ndlovu left her child with a relative in State A for several months while working out of state. The other parent filed a custody petition in State B and obtained an ex parte order granting sole custody. The State B court entered the order without attempting to locate or notify Nyah or the relative who had physical custody. The order is subject to challenge because the statute requires notice and an opportunity to be heard before any custody determination.
Neville Norton taught at a state college under a one-year contract. At the end of the year the college simply notified him that it would not renew the contract and gave no reasons. Norton sued, claiming the college should have provided notice of any stigmatizing charges and an opportunity to respond before the nonrenewal took effect.
In 1968 the Board of Regents of State Colleges hired David Roth as an assistant professor of political science at Wisconsin State University-Oshkosh for a fixed term running from September 1, 1968, to June 30, 1969. The formal notice of appointment stated that the employment basis was the academic year. It provided that regulations governing tenure followed Wisconsin Statutes Chapter 37.31. Roth was informed before he began teaching that he had no tenure rights and would be rehired for the 1969-1970 academic year only if the University chose to retain him. Under Wisconsin law a teacher could acquire tenure as a permanent employee only after four years of continuous service. The Board of Regents' rules established February 1 as the deadline for written notification of non-retention for nontenured faculty. No reason for non-retention need be given and no review or appeal is provided in such case. In conformance with these rules the University president notified Roth before February 1, 1969, that he would not be rehired. Roth received no statement of reasons and no opportunity to challenge the decision. Roth brought this action in the United States District Court for the Western District of Wisconsin. He alleged that the failure to provide reasons and a hearing violated his Fourteenth Amendment right to procedural due process. He also alleged that the non-renewal decision was actually retaliation for statements critical of the University administration that violated his First Amendment rights. The District Court granted summary judgment for Roth on the procedural due process claim. The Court of Appeals for the Seventh Circuit affirmed. The Board of Regents petitioned for a writ of certiorari, which the Supreme Court granted.
View caseNoelle North received public assistance payments that the state agency planned to end based on an internal report. The agency mailed a letter stating the payments would stop but provided no pre-termination hearing. North challenged the cutoff, arguing that due process required notice and an evidentiary hearing before benefits could be terminated.
Residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program brought this action in the District Court for the Southern District of New York against the state and city officials who administered those programs. At the time the suits were filed, New York had no requirement of prior notice or hearing of any kind before termination of financial aid. The suits prompted the State Commissioner of Social Services to amend the Department of Social Services regulations. The amendment required local officials proposing to discontinue or suspend a recipient's aid to follow either subdivision (a) or subdivision (b) of § 351.26. The City of New York elected to follow subdivision (b). It promulgated Procedure No. 68-18. Under that procedure a caseworker who doubts a recipient's continued eligibility first discusses the doubts with the recipient. The caseworker then recommends termination to a unit supervisor. If the supervisor concurs, the recipient receives a letter stating the reasons for the proposed termination and notifying the recipient that within seven days he may request review by a higher official and may submit a written statement. The reviewing official decides whether to discontinue aid. Aid stops immediately upon affirmation, and the recipient is notified in writing of the reasons. The city's procedure contains no provision for the recipient's personal appearance before the reviewing official, for oral presentation of evidence, or for confrontation and cross-examination of adverse witnesses. The letter sent to the recipient states that he may request a post-termination fair hearing before an independent state hearing officer. At the hearing the recipient may appear personally, offer oral evidence, confront and cross-examine witnesses, and have a record made. If the recipient prevails, all funds erroneously withheld are paid. A recipient whose aid is not restored after the fair hearing may obtain judicial review under Article 78 of the New York Civil Practice Law and Rules. The District Court held that only a pre-termination evidentiary hearing would satisfy due process. The court rejected the argument that the combination of the post-termination fair hearing and the informal pre-termination review was constitutionally adequate. Only the Commissioner of Social Services of the City of New York appealed. The Supreme Court noted probable jurisdiction in 1969.
Nicholas Nunez received Social Security disability benefits for several years. The agency reviewed his medical file, concluded he had improved, and sent a termination notice without an in-person hearing. Nunez argued that the existing procedures failed to provide a meaningful opportunity to be heard before his benefits ended.
Noah Nakamura worked as a public school custodian under a statute that allowed termination only for cause. The school board fired him after an internal investigation but gave no pre-termination hearing. Nakamura sued, contending that due process entitled him to notice of the charges and an opportunity to respond before his employment ended.
Nia Nkosi, an inmate, had personal property taken and destroyed by a prison guard during a cell search. Nkosi sued under the Due Process Clause, claiming the state should have provided notice and some opportunity to be heard before the intentional deprivation occurred.
The requirement attaches before any court makes a child-custody determination. It applies to parents whose rights have not been terminated and to any person having physical custody of the child. Courts must follow the notice standards of the governing statute and cannot proceed ex parte when those parties are known or readily locatable.
Supporting sources
…a meaningful time and in a meaningful manner." Goldberg v. Kelly , 397 U.S., at 267. But the range of interests protected by procedural due process is not infinite. The words "liberty" and "property" in the Due Process Clause of the Fifth and Fourteenth Amendments must be given some meaning. In Board of Regents v. Roth , 408 U.S. 564…
…particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process
…delays incident to judicial proceedings the Act substitutes an administrative tribunal for the court; and, besides providing for notice and opportunity to be heard, endows the proceedings before the deputy commissioner with the customary incidents of a judicial hearing
…in secret. This is not the way to run a university in a free society. The Fourteenth Amendment requires that a person be given notice and an opportunity to be heard before he is deprived of a liberty or property interest. The respondent had both a liberty and a property interest in his continued employment. The decision not to rehire him may have been…
…which to assess the propriety of the State's action at some time after the initial taking. . . satisf[ies] the requirements of procedural due process." We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when…
Only when the employee possesses a protected property interest in continued employment. At-will employees lack such an interest and receive no constitutional protection. Employees who may be terminated only for cause hold a property interest and must receive notice of the charges and an opportunity to respond before termination.
Supporting sources
The test weighs the private interest affected, the risk of erroneous deprivation under current procedures, and the government's interest in avoiding additional process. When the private interest is substantial and the risk of error is high, a pre-deprivation hearing is usually required. When the government's interest in prompt action is strong and post-deprivation remedies are adequate, a hearing after the fact may suffice.
Supporting sources
The order violates the statute and may be vacated. The statute does not govern enforceability of an order entered without notice, so sister states need not recognize it. The parties denied notice can move to set the order aside and obtain a new hearing at which they may participate.
Supporting sources