Due process

Chapter 17
Due process


E. Fremont Magee and Sarah M. Sette


Introduction


“Due process of law” is a principle of federal constitutional law that gives every person in the United States the right to present reasons why the government should not deprive the person of life, liberty, or property. Due process of law plays a prominent role in modern public safety administration.


The reach of due process of law underwent an explosive expansion in 1970 following the ruling by the Supreme Court of the United States in the case of Goldberg v. Kelly, 397 U.S. 254 (1970), which recognized a due process right to notice and a hearing before a government agency could terminate an individual’s welfare benefits.


Today, under certain circumstances (which in some cases are difficult to determine), due process of law can be required from a state or municipal agency, a volunteer fire department, a private ambulance company, and perhaps even a medical director. Due process of law extends to employment terminations, licensure and certification terminations, disciplinary actions, and the withdrawal of medical authorization and credentialing. It may also be required in a quality assurance or quality improvement review.


Even in situations where due process of law is not legally mandated, it is a procedure that can serve to determine facts while instilling confidence in the process both in participants and observers.


In addition to the constitutional doctrine of due process of law, there are several federal statutes that protect individuals from unfair treatment such as the Family Medical Leave Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1966. Employees may have additional individual employment rights under state statutes and employment contracts. Rights under such laws and contracts provide substantial benefits, and they must be complied with in any employment or licensing action involving EMS providers. Such additional rights, however, are not the subject matter for this chapter.


This chapter will outline due process of law. It will briefly review the elements of due process of law that can affect the administration of EMS and the circumstances in which they are or may be required. Needless to say, when dealing with issues of providing and instituting due process of law, consult competent legal counsel.


Law in the federal system


First a word about the sources of laws that require and define due process of law.


Case law


Many of the requirements of due process of law in the United States arise from the written decisions of judges in various courts.


In the federal system, the Supreme Court of the United States sits at the top of the judicial hierarchy, and its rulings are law throughout the United States. At the next level down are the US Courts of Appeals. There are 11 numbered courts, plus the US Court of Appeals for the DC Circuit, and the US Court of Appeals for the Federal Circuit, which has jurisdiction in specific subject areas not likely to involve EMS. The rulings of the US Courts of Appeal are the law in the circuits in which they sit unless overruled by the Supreme Court. In the next lower tier of the federal judiciary are the US District Courts. There are 89 of them – at least one in each state. Their rulings are primarily limited to the particular cases involved, but they often serve as precedent for other cases in the same district.


In addition to the federal system, each state has its own state court system with a hierarchy of courts unique to that particular state. State courts have a hierarchy similar to the federal courts. The opinion of a state’s highest appellate court is law in that state.


The cases discussed and quoted in this chapter come from among all these various courts. The reasoning and conclusions are of interest from an analytical perspective. The extent to which they represent current law in a particular jurisdiction depends on their location and place in the judicial hierarchy, and whether the opinion continues in force or has been overruled by a higher court or abandoned by a subsequent opinion.


State legislation


Most contested cases involving EMS issues will take place before a state agency, such as a Department of Health.


Every state has adopted a law known as an administrative procedures act that to some degree will provide for due process procedures in contested hearings in the cases to which those acts apply [1]. Compliance with those procedures will be required. Those procedures can also provide a template for due process procedures that can be instituted in situations in which they are not required by law.


State administrative law proceedings generally can provide an expeditious, inexpensive, and yet thorough review of the important issues in a matter without the potentially prolonged procedures involved in court proceedings. Among other things, certain rules of evidence can be relaxed. As an example, hearsay evidence, a written or oral statement made by someone not testifying, may be admissible in an administrative proceeding if it helps resolve an issue and is credible and the rules so provide [2]. Such an approach allows the issue to be heard in a less formal format without being bound by the complex rules of evidence surrounding hearsay. At the same time a party who challenges a piece of evidence has the ability to present contrary evidence.


Judicial review of administrative proceedings is usually quite limited. Ordinarily a ruling in an administrative proceeding will not be retried in a court on appeal. Generally any review by a court is limited to a determination of whether there was substantial evidence in the administrative proceeding to support the result.


In addition to the state administrative procedures acts, many state constitutions have requirements for due process of law or its equivalent. There may also be other state statutes and regulations that detail due process requirements such as notice, hearing procedure, right to counsel, and similar subjects that may apply in specific cases. Those statutes and regulations must, of course, be complied with, and in some cases may provide more or different rights than the case law on the subject.


Due process of law


The present-day elements of due process of law have evolved to their current form from principles dating from medieval times combined with over 200 years of judicial interpretation by courts in the United States [3].


The legal doctrine of due process of law in the United States is perhaps most directly derived from the 39th chapter of the English Magna Carta of 1215:



No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We [the King] proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land [4]. (translated from Latin)


The term “due process of law” appears twice in the Constitution of the United States. The Fifth Amendment prohibits the federal government from depriving any person “of life, liberty, or property, without due process of law,” and the Fourteenth Amendment prohibits states from depriving any person of life, liberty, or property without due process of law. However, there is no definition of the term “due process” in the Constitution. As Supreme Court Justice John Marshall Harlan II observed:



Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. [Poe v. Ullman, 367 U.S. 497, 542 (1961)]


Due process – procedural versus substantive


Although it may appear that due process of law clearly refers to a process or procedure, there are in fact two separate components to the due process of law doctrine. One component is “procedural due process of law,” which deals with the process of procedural fairness. The second component is referred to as “substantive due process.” The differences between the two are explained by the Supreme Court as:



… [the] Due Process Clause protects individuals against two types of government action. So-called “substantive due process” prevents the government from engaging in conduct that “shocks the conscience,”… or interferes with rights “implicit in the concept of ordered liberty,”… When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner… . This requirement has traditionally been referred to as “procedural” due process. [U.S. v. Salerno, 481 U.S. 739, 746 (1987)]


To establish a violation of substantive due process an individual must show that:



  1. the challenged action affects a fundamental right
  2. substantial infringement of state law prompted by personal or group animus, or
  3. government action is legally irrational in that it is not sufficiently related to any legitimate state interest. [Steinberg v. District of Columbia, 901 F. Supp. 2d 63, 67-73 (D.D.C. 2012)]

This chapter will primarily deal with the procedural aspects of due process of law. Some liberty interests related to employment are not protected by substantive due process in any event [5].


Elements of due process


The basic ingredients available for procedural due process of law were culled from existing court opinions and collected in 1975 in an article entitled “Some Kind of Hearing” written by Henry J. Friendly, a former Chief Judge of the US Court of Appeals for the Second Circuit. The inspiration for the title was a quotation from Supreme Court Justice Byron White:



The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests. [Wolff v. McDonnell, 418 U.S. 539, 557–558 (1974)]


Judge Friendly set forth the requirements for procedural due process in relative order of importance as:



An unbiased tribunal;


Notice of the proposed action and the grounds asserted for it;


An opportunity to present reasons why the proposed action should not be taken;


The right to call witnesses;


The right to know the evidence against you;


The right to have decision based only on the evidence presented; Counsel;


A record of the proceeding;


A statement of reasons for the action taken [6].


Not all of these elements are required in any given situation. Due process is a flexible concept that varies with the particular situation, or as the Supreme Court put it:



Once it is determined that due process applies, the question remains what process is due. [Morrissey v. Brewer, 408 US 471, 481 (1972)]


Generally, a decision on how many and which of the historical elements (or perhaps some new ones) to implement and how to implement them is based on:



…consideration of three distinct factors: First, the private interest that will be affected by the official action;


second, the risk of an erroneous deprivation of such interest through the procedures used, and the 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 requirement would entail. [Mathews v. Eldridge, 424 US 319, 335 (1976)]


Governmental action


The doctrine of procedural due process of law has a major limitation: it only applies to action taken by a government.


For example, in ruling that the University of Nevada–Las Vegas basketball coach could not complain that he did not receive due process from the National Collegiate Athletic Association (which was found to be a private organization and hence not involved in state action), the Supreme Court of the United States noted:



Embedded in our … [constitutional due process]
jurisprudence is a dichotomy between state action, which is subject to scrutiny under the … Due Process Clause, … and private conduct, against which … [constitutional due process law] affords no shield, no matter how unfair that conduct may be… . As a general matter the protections of [due process] do not extend to “private conduct abridging individual rights.” [National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)]


Although a person may have a right under the Constitution, what remedy does the person have if the right is violated? An important federal statute addresses that problem: the Civil Rights Act of 1871, 42 USC §1983 (“Section 1983”). That statute provides that a person who is deprived of a constitutional right by a person acting under color of state law can sue the “state actor”:



Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State …, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …


Although the issue is not entirely free from doubt in some cases, for our purposes at least, state action under Section 1983 and state action under the Fourteenth Amendment have the same meaning [7].


Clearly a state or local government is engaged in state action. However, private parties, such as volunteer fire and ambulance companies, private ambulance companies, and even medical directors can be so closely entwined with governmental action as to be engaged in state action and thereby required to provide procedural due process. The analysis for determining whether a private party is engaged in state action for purposes of the Fourteenth Amendment is summarized by the United States Court of Appeals for the Sixth Circuit in Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) as:



The principal inquiry in determining whether a private party’s actions constitute “state action” under the Fourteenth Amendment is whether the party’s actions may be “fairly attributable to the state.” … The Supreme Court has set forth three tests to determine whether the challenged conduct may be fairly attributable to the state … These tests are


… [(1)] The public function test [which] requires that the private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections, … , or eminent domain, …


… [(2)] The state compulsion test [which] requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state… .


… [(3)] the symbiotic relationship or nexus test, [under which] the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.


If any of these criteria are satisfied by a person or entity, then state action exists and due process is required. Court opinions discussing this issue routinely engage in elaborate and detailed analysis of the evidence. In many cases predictability of the outcome is uncertain. However, many proceedings that will involve EMS providers and EMS agencies will involve direct governmental regulation and/or licensing and certification that constitute state action and thus will unquestionably involve the right to procedural due process of law.


Ambulance companies


Whether a volunteer or private ambulance company is engaged in state action and required to provide due process of law depends on the particular facts and circumstances under which the company operates [8]. The courts that take up this analysis describe it as perplexing and difficult.


The Supreme Court has avoided ruling on the issue:



We express no view as to the extent, if any, to which a city or State might be free to delegate to private parties the performance of … [fire protection] and thereby avoid the strictures of the Fourteenth Amendment. [Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164 (1978)]


Determining whether an ambulance company is engaged in Fourteenth Amendment state action generally involves a review of all of the elements of all of the tests against all of the evidence in a particular case.


Was the entity a private organization or corporation? How much funding did it receive from a governmental entity? Who owned the property that the organization used? What oversight did a governmental entity exert? Was the entity performing a governmental function? Was the entity performing a function that was traditionally an exclusive governmental function?


Who was the entity’s staff employed by? What is the legal requirement for providing the service?


The results of this analysis have produced the following.



  • Six cases have found volunteer fire companies to be engaged in state action [9].
  • Two cases have held it is a question of fact whether a volunteer fire company has engaged in state action without deciding the issue [10].
  • Four cases have found volunteer fire companies not to be engaged in state action [11].
  • One case has found an ambulance company engaged in state action [12].
  • Six cases have found rescue squads and ambulance companies not to be engaged in state action [13].

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Jun 14, 2016 | Posted by in EMERGENCY MEDICINE | Comments Off on Due process

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