3: Due Process of Law
Both the United States and New
York Constitutions guarantee that no person shall be deprived
of "life, liberty or property, without due process of law."
The concept of due process imposes a fundamental obligation
upon all organs of government, including state agencies. At
its base, due process means that no person can be subject to
an individualized proceeding in which he or she stands to lose
one of the protected interests – in the context of administrative
law, either property or liberty – without sufficient procedures
to ensure that the governmental action is fundamentally fair.
Of course, these are not self-defining
terms. The notions of what is an individualized proceeding,
what are protected liberty and property interests, and what
constitutes acceptably fair procedures have all been the subject
of elaborate judicial interpretation. Because of their great
importance in agency adjudication, they are covered in detail
Procedural due process becomes
a governmental obligation only in cases in which the government
makes an individualized determination towards a small number
of persons or entities. Across-the-board, generalized policy
decisions do not implicate a right to procedural due process,
though such actions may implicate other rights.
Two early United States Supreme
Court cases illustrate this distinction nicely. In Londoner
v. Denver, [210 US
373 (1908)], the plaintiff was a Denver property
owner. A statute allowed the creation of special assessment
districts for street repairs, with the total cost of the work
to be divided among the property owners, presumably in relation
to the benefit to them. Londoner, complaining that his assessment
did not accurately reflect the benefit to his parcel, sought
a hearing before Denver City Council, but was rebuffed. The
United States Supreme Court held that Londoner had been deprived
of his due process rights.
In Bi-Metallic Investment Co.
v. State Board of Equalization, [239
US 441 (1915)], another Denver property owner–the
Bi-Metallic Co.–challenged an order of the State Board
of Equalization effectively increasing the valuation of all
Denver property by forty percent. The Bi-Metallic Co. requested
a hearing and, like Londoner, was rebuffed. This time, however,
the United States Supreme Court held that no hearing was constitutionally
Both cases involved Denver landowners
complaining that their real property taxes or assessments were
too high, yet only Londoner had a constitutional right to a
hearing. Why? The Supreme Court's answer to this riddle was
that only Londoner was the target of an individualized governmental
decision; only Londoner could have offered up particularized
facts relative to his situation. The Bi-Metallic Co. was understandably
unhappy, but its position was no different from any other Denver
landowner. A hearing involving Bi-Metallic would have brought
forth nothing other than generalized grievances shared by a
huge number of other persons and entities.
The protection, then, for persons
and entities like the Bi-Metallic Co. is the political process.
Unpopular, across-the-board decisions are likely to have negative
political consequences. But offering an individual hearing to
everyone so affected would bring governmental action to a standstill.
Often these individualized determinations
are referred to as "quasi-judicial" to contrast them with "quasi-legislative",
across-the-board determinations. Quasi-judicial proceedings
involve the determination of adjudicative facts, while quasi-legislative
proceedings involve the determination of legislative facts and
matters of broad policy. Professor K.C. Davis, undoubtedly the
most famous writer on administrative law, explained the distinction
[Adjudicative facts] are intrinsically
the kind of facts that ordinarily ought not be determined without
giving the parties a chance to know and to meet any evidence
that may be unfavorable to them, that is, without providing
the parties an opportunity for trial. The reason is that the
parties know more about the facts concerning themselves and
their activities than anyone else is likely to know, and the
parties are therefore in an especially good position to rebut
or explain evidence that bears upon adjudicative facts. Because
the parties may often have little or nothing to contribute to
the development of legislative facts, the method of trial often
is not required for the determination of disputed issues about
legislative facts. 2 K.C. Davis, Administrative Law Treatise
412-13 (2d ed. 1979).
This distinction closely tracks
the division between Articles 2 and 3 of SAPA. [See,
Chapter 1, supra, for a discussion]. Article 2 is
the portion of SAPA that relates to rulemaking proceedings;
Article 3 is the portion that relates to adjudicatory proceedings.
Adjudicatory proceedings, which involve specific named parties
and a particular determination of their rights, are individualized
determinations for due process purposes. Rulemakings, on the
other hand, usually involve the setting of a standard applicable
to a large number of persons or entities, and therefore such
proceedings are almost always generalized, non-individualized
proceedings that do not trigger a procedural due process inquiry.
The one exception is that very narrow, targeted rulemakings
which directly affect only a small group – as can occur
in ratemakings and similar proceedings – can be treated
as individualized proceedings that trigger a procedural due
process inquiry. [See,
ICC v. Louisville & Nashville RR. Co., 227 US 88 (1913)(applying
due process principles to a ratemaking proceeding)].
Due process does not protect individuals
from all conceivable negative governmental actions. Rather,
it protects against deprivations of life, liberty and property.
In the administrative context the two important protected interests
are property and liberty.
"Property" in the due process sense
has both a traditional and non-traditional usage. In the traditional
sense property encompasses well-defined categories of wealth
such as money, tangible personal property, real estate and so
on. Thus, for example, if an agency is bringing an enforcement
proceeding seeking a monetary penalty, the private party indisputably
has a property interest at stake which implicates due process
It is the non-traditional sense
of the word "property" that calls for closer examination. A
large number of persons have or seek relationships with the
government that are valuable to them. For example, government
employees, holders of government licenses, applicants for and
current recipients of social welfare benefits all suffer from
a loss of their relationship with the government. The critical
question is whether the loss of such a relationship constitutes
a deprivation of a property interest for due process purposes.
Once again, two United States Supreme
Court cases illustrate the point. In Board
of Regents v. Roth,
[408 US 564 (1972)],
the plaintiff Roth was an untenured professor
at a public university in Wisconsin. Without explanation, Roth's
contract was not renewed for the following year. Roth sued,
claiming that the failure to provide him with a hearing before
deciding to cease his employment constituted a due process violation.
The Supreme Court ruled that Roth had no property interest.
While most untenured professors were renewed, Roth could point
to no state law entitlement to continued employment because
he was expressly made a year-to-year employee. In the course
of rejecting Roth's arguments, the Supreme Court offered the
following definition of property:
To have a property interest in a
benefit, a person clearly must have more than an abstract need
or desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of entitlement
to it. . . . [Roth, 408 US at
The same day as Roth,
the Supreme Court decided Perry v. Sindermann. [408
US 593 (1972)]. Perry, like Roth,
involved a claim brought by a public university professor who
had lost his employment. The Perry plaintiff, like
Roth, was not the beneficiary of any formal tenure system. In
Perry, however, the Court held that the professor might
have a property interest. Unlike Roth, the Perry plaintiff
had produced university handbooks and other official publications
that arguably created an entitlement to continued employment
during satisfactory performance.
Roth and Perry
show that the question of whether the private party has a property
interest can turn on very narrow factual distinctions. Property
interests can come from a large number of sources, including
statutes, regulations, agency handbooks and memoranda, and other
official pronouncements. If those official statements create
enforceable standards that guide the agency's discretion, then
the private party has a property interest that can trigger due
process rights. Because this can be a close and difficult question,
ALJs and other agency employees are safest when they assume
that due process principles do, in fact, apply to the proceeding
before them. By treating a proceeding as one in which due process
principles apply, the agency can help diminish the risk that
a reviewing court will later overturn the outcome.
Liberty interests, like property
interests, can be divided into two types. One kind is fundamental
liberty interests. Fundamental liberty interests are those that
are sufficiently well-recognized that they are protected regardless
of how they are defined by state law. Free speech, voting, privacy
and other interests that are protected explicitly or implicitly
by the Constitution thus trigger a hearing requirement. Fundamental
liberty interests also include significant losses of "liberty"
as that term is commonly understood. Thus, for instance, a person
in the general citizenry could not be committed to a mental
hospital against his or her will without some sort of hearing
to determine whether he or she meets the standards for commitment.
The other type is non-fundamental
– or, as they are sometimes called, "state-created" –
liberty interests. These liberty interests take their definition
from state law. In this regard, non-fundamental liberty interests
closely resemble property interests. In order for a person to
successfully assert that he has a non-fundamental liberty interest,
he or she must be able to point to some statute, regulation,
contract or other source of law that creates an entitlement.
Non-fundamental liberty interests differ from property interests
only in that liberty interests lack a clear monetary value,
while property interests have a clear monetary value.
One context in which claims of
liberty interests are often raised is prison. Inmates –
pointing to prison regulations, handbooks and the like –
regularly argue that a loss of a privilege is a liberty deprivation
that triggers a due process right to a hearing. In Sandin
v. Conner, [515
US 472 (1995)],
however, the United States Supreme Court ruled that an inmate
can successfully raise such a due process claim only if he or
she can show that the loss of the privilege is an "atypical
and significant hardship." In the Sandin case, the
Supreme Court held that an inmate's transfer to disciplinary
segregation was not such a hardship and that the inmate had
not been deprived of due process when the prison transferred
him without first conducting a hearing.
Another special context in which
liberty interests are raised in administrative matters is reputational
injuries. The United States Supreme Court has held that a person
does not have a liberty interest in his or her reputation as
such. But, an injury to reputation plus some other significant
negative consequence is a loss of liberty that triggers due
process. Often, this is referred to as the "stigma plus" test:
if some governmental action causes a person stigma plus
some other negative consequence, that person has suffered a
deprivation of liberty.
For example, in Miller v. DeBuono,
[90 NY2d 783 (1997)], a
nurse's aide was accused of hitting one of her patients. Under
state law, her name was to be placed on a registry maintained
by a state agency for the purpose of identifying abusers. The
New York Court of Appeals held that the aide had a liberty interest
at stake. Placement of her name in the registry called into
question her reputation plus it had the effect of severely
limiting her employment opportunities, as the registry was publicly-available.
Because she had a liberty interest at stake, her due process
rights were triggered, and the court ruled that she should have
received extensive procedural protections before being placed
on the registry.
As with property interests, the
question of whether a party has a liberty interest can turn
on very narrow factual inquiries. In close cases it is probably
best to assume that the private party has a liberty interest
and thus that due process principles apply.
Assuming there is individualized,
governmental action at which a private party has a property
or liberty interest at stake, the private party's right to "due
process of law" is triggered. Of course, this is not a mechanical
test, and contemporary notions of the amount of procedure required
have evolved over time.
The most famous administrative
due process case is the United States Supreme Court's opinion
in Goldberg v. Kelly. [397
US 254 (1970)]. In that case, the Supreme
Court ruled that the then-existing procedures for determining
eligibility under the Aid to Families with Dependent Children
program were inadequate, because those procedures gave the recipient
an insufficient opportunity to contest the reasons for being
removed from the eligible list. In ruling that the then-existing
procedures were inadequate, the Court held that the following
procedures generally must be provided before the property
or liberty interest is lost: timely and adequate notice of the
hearing, confrontation and cross-examination of adverse witnesses,
the right to make an oral presentation, the right to hire one's
own counsel, an impartial decisionmaker, and a decision based
entirely on the relevant legal rules and the evidence adduced
at the hearing.
More recently, however, the Supreme
Court has articulated a more flexible test. In Mathews v.
US 319 (1976)],
the Supreme Court ruled that the required procedures must be
evaluated by balancing three factors. Those factors are the
value of the property or liberty interest, the cost to the government
in providing more procedure, and the risk of an erroneous decision
without more procedure. The more valuable the interest the more
procedure is required; the more costly the additional procedure,
the less likely it is to be constitutionally required; the greater
the chance of an error without additional procedures, the more
likely such procedures will be constitutionally required. In
Mathews, the Supreme Court demonstrated that the requirement
of a full hearing before the decision is itself flexible. In
that case, the Court ruled that an oral hearing before deciding
to deny disability benefits to the private party was not necessary,
because the question of his disability was mostly a medical
question that could be evaluated from x-rays and similar medical
tests, making an oral hearing less crucial.
The Goldberg list of procedures
is similar to the procedures required for adjudicatory proceedings
under Article 3 of SAPA. [See,
Chapter 1 for a discussion of "adjudicatory proceedings"].
Thus, if the matter is an adjudicatory proceeding under SAPA,
careful compliance with SAPA and the agency's hearing regulations
should avoid almost all due process problems. For administrative
matters that are not adjudicatory proceedings, or otherwise
not covered by SAPA, the Goldberg list is a good starting
point for determining the procedures that the Constitution demands.
Mathews, however, gives agencies and ALJs considerable
flexibility in molding procedures to fit the circumstances,
as long as the matter is decided in a fundamentally fair and
impartial manner. For smaller matters, very informal hearings
can suffice. For administrative matters in which much of the
evidence is documentary or technical, written submissions can
substitute for what otherwise might be lengthy oral hearings.
As long as the procedures give all parties concerned a reasonable
opportunity to present their case, and the decision is made
in a reasoned, fair and impartial manner based upon what the
decisionmaker learns at the hearing, due process is generally
Some due process questions have
recurred with enough frequency that they merit specific mention.
Notice to an affected party must
provide that party with enough information to respond. Thus,
very cryptic notices that provide only a vague sense of the
nature of the matter are not sufficient. [See,
e.g., Alvarado v. State of New York, 110 AD2d 583 (1st Dept.1985)(notice
stating only that hearing would involve "charges that the
gloves [of a boxer] were tampered with" is insufficient)].
An administrative notice, however, need not provide detailed
information such as specific times and dates of allegedly important
e.g., Block v. Ambach, 73 NY2d 323 (1988)(administrative notice
need not have same level of detail as a criminal indictment)].
SAPA § 501 generally requires
that a private party be allowed to hire an attorney to represent
him or her in agency proceedings. In most circumstances due
process also provides a right to counsel. There are some circumstances,
however, in which the party might not be afforded a right to
counsel. For example, in student disciplinary matters, where
providing counsel may be inconsistent with maintaining a non-adversarial
approach, the private party need not be afforded a right to
counsel. [See, e.g.,
Mary M. v. Clark, 100 AD2d 41 (3rd Dept. 1984)].
Such cases are the exception. In most circumstances counsel
must be allowed, though it is the private party's obligation
to pay his own lawyer.
Parties often contend that due
process requires pre-hearing disclosure or discovery. New York
courts have routinely rejected this argument. [See,
e.g., Sinha v. Ambach, 91 AD2d 703 (3rd Dept. 1982)]. SAPA
§ 305 allows agencies to adopt rules allowing for discovery,
but unless the agency adopts such a rule, or some other statute
requires pre-hearing discovery, parties have no such right.
[See, McBarnette v. Sobol,
83 NY2d 333 (1994)(statute requires some disclosure); SAPA §
401 (some mandatory exchange of information on request in licensing
matters); Heim v. Regan, 90 AD2d 656 (3rd Dept. 1982)(no discovery
right in administrative matters unless agency hearing regulations
provide for discovery)].
Cross-examination of adverse witnesses
who appear is generally a due process right. [See,
Hecht v. Monaghan, 307 NY 461 (1954)]. However,
the right does not extend to repetitive or entirely collateral
examinations of witnesses. [See,
National Basketball Ass'n v. New York State Div. of Human Rights,
68 NY2d 644 (1986)]. Thus, an ALJ may cut off cross-examination
that serves no truth-seeking function, but may not cut off cross-examination
where doing so prejudices the rights of a party. In close cases,
it is best to allow a party requesting cross-examination lest
the denial become a significant issue on judicial review.
Parties generally have a due process
right to have their matter decided on the evidence adduced at
the administrative proceeding. If an ALJ intends to go outside
the administrative record – as is permissible to take
official notice of facts well known to the ALJ or within the
agency's special expertise – the private party has a due
process right to notice of this intention. Thus, failure to
provide a private party with advance warning of an intention
to go outside the record, and failure to provide an opportunity
to rebut, is a due process violation. [See,
e.g., Cohen v. Ambach, 112 AD2d 497 (3rd Dept. 1984)(failure
to inform pharmacist that agency would take official notice
of standards for advertising in the "public interest"
requires reversal of penalty)].
The burden of proof is generally
placed on the party initiating the proceeding. In the case of
enforcement actions against a private party, the burden is on
the agency; in matters in which the private party seeks a benefit,
the burden is on the private party. SAPA § 306 requires
agencies to apply a burden of proof of at least substantial
evidence. The Court of Appeals has ruled in Miller v. DeBuono,
[90 NY2d 783 (1997)],
that a private party who stands to lose a substantial liberty
interest has a due process right to a standard of proof no lower
than preponderance of the evidence. Therefore, ALJs should initially
place the burden of proof on the party initiating the proceeding.
The party initiating the proceeding should prevail if the facts
adduced at the hearing show that the initiating party's position
is the more plausible one based upon the evidence.
Parties have a due process right
to a neutral decisionmaker. Thus, an agency official or ALJ
who has previously publicly expressed opinions relative to a
matter before the agency cannot act as a decisionmaker on that
matter. [See, 1616 Second
Avenue Restaurant, Inc. v. New York State Liquor Auth.,75 NY2d
158 (1990)(statements in a legislative hearing by agency head
require reversal of sanction against license holder)].
Agency officials who have personally participated in
the development of a case against a party, or who have a significant
personal stake in the outcome, are also generally prohibited
from sitting in judgment on those matters. [See,
General Motors Corp. v. Rosa, 82 NY2d 183 (1993)(former general
counsel promoted to agency head could not review case prosecuted
by her and an assistant)]. Substantial, off-the-record
conversations by an ALJ or agency official about factual issues
in a matter before the agency also preclude that ALJ or agency
official from acting as a decisionmaker on that matter. [See,
Signet Construction Corp. v. Goldin, 99 AD2d 431 (1st Dept.
Delay between the time of the underlying
incident and the date of the administrative hearing is generally
not a violation of a party's due process rights. An agency does,
however, have the duty to hold an administrative hearing reasonably
promptly after the matter has been noticed. [See,
Cortland Nursing Home v. Axelrod, 66 NY2d 169 (3rd Dept. 1985)].
A very lengthy delay, which is not attributable to the private
party's own actions, can be a due process violation if it manifestly
prejudices the private party's ability to present his case.
[See, Sharma v. Sobol, 188
AD2d 833 (1992)].
A private party who loses before
the agency has a due process right to a decision that explains
the reasons for the decision. Thus, an ALJ's or agency's opinion
must contain enough information to show the reasoning process
for the result reached, and to allow a reviewing court to understand
the basis for the decision. In very simple cases less explanation
is required; in more complex ones a more detailed explanation
is necessary. An agency opinion need not be the equivalent of
a formal judicial opinion, but it does need to contain enough
explanation to show how the result was reached from the evidence
presented in the case. [See,
Koelbl v. Whalen, 63 AD2d 408 (3rd Dept. 1978)].
Parties also have a right to an opinion that is consistent with
past agency decisions, or explains the reasons for departing
from precedent. An opinion that is inexplicably contrary to
other agency decisions reached on similar facts is a due process
violation. [See, Charles
A. Field Delivery Service v. Roberts, 66 NY2d 516 (1985)].