Toward Greater Fairness for All

WHEN a Pennsylvania woman got into an argument about rent, her landlady quietly acquired a court order to sell off the apartment's contents if she did not pay $1,375 within five days. A teacher in the Peace Corps was dismissed after he admitted smoking one marijuana cigarette. A West Point cadet was unceremoniously expelled when he piled up five more demerits than academy regulations allow. For all three individuals--and for many more like them--such penalties were apparently unavoidable; someone in authority had decided that they had broken the rules. Nonetheless, all three went to court--and in each case, the judge ruled that they should have been granted a hearing. In other words, each plantiff was entitled to "due process of law."

"Due process" --the phrase rings with the sound of constitutional authority. But even lawyers find it hard to define. It has what the textbooks call a "convenient vagueness" that makes its precise limits uncertain. Basically, due process is meant to ensure what the Supreme Court calls "fundamental fairness." It is embodied in the Fifth and 14th amendments to the Constitution, which proclaim that no federal, state or local government can deprive a person of "life, liberty or property without due process of law." Despite the venerability of the concept, however, courts only now are coming to a broad new view of its application.

Today due process is invoked with growing frequency whenever a citizen's liberty or property is in jeopardy and government is even faintly involved. In such cases, say judges, fairness requires that a citizen get a hearing with a right to tell his story and pick whatever holes he can in the opposing version. Often the requirements of that hearing include the right to cross-examine, the right to counsel, and the right to have the decision rendered by a neutral official.

Related to the new legal attitude is an increasingly liberal interpretation of an individual's liberty and property. Thus the West Pointer's opportunity to gain a commission did not have any specific price, but it was nonetheless judged to be of substantial value. At the cadet's hearing, he was able to successfully challenge enough demerits to remain in school, but the decision could perfectly well have gone the other way. When the Pennsylvania rent payer's legal situation is finally settled, the landlady may well win the right to claim the furniture legally if back rent is not paid.

The point is that such penalties may no longer be imposed arbitrarily. The right to a hearing now extends to many areas of contact between citizen and officialdom. A man's driving license may not be suspended without a hearing, nor may a soldier's pay be docked by administrative fiat. Environmentalists use due process as one way to block all sorts of construction pending a hearing. A Florida federal court has ruled that no prisoner may be put in solitary without a hearing. Difficult children and the mentally ill are winning the right to dispute efforts to institutionalize them.

Even more germane for many people, due process is spreading its protection to a wide variety of jobs--most directly to those in which government is the employer. The Supreme Court last year indicated that public schools may not summarily dismiss a teacher who has held his job on a seemingly permanent basis, even if he does not have formal tenure. A Brooklyn court has gone further, ruling that though a nontenured teacher did get a hearing before being dismissed, the dismissal was still illegal because the teacher had been denied a lawyer and a chance to cross examine hostile witnesses.

Because the due-process clause of the Constitution limits only government activity, it has not been generally applied to private employers. But it is nonetheless changing the rules of business in important ways.

In 1969 the Supreme Court heard the case of Christine Sniadach, a Milwaukee assembly-line worker whose wages had been garnisheed by a loan company trying to recover a debt; the court ruled that such garnishment was illegal unless the victim first got a due-process hearing. Last year the court reviewed Florida and Pennsylvania statutes governing the repossession of furniture and other merchandise and ruled that no creditor could get a court order or a sheriff's help in taking back his goods without first giving a hearing to the customer accused of being delinquent. Since then, repossession statutes have been quietly dying in a number of states, most recently in Alaska, Iowa and Massachusetts. Along with repossession, the lower courts have taken up landlord-and-tenant laws, as well as the conduct of state-regulated utilities. In Colorado, New York, Ohio and Minnesota, gas and electric companies have now been warned that they may no longer automatically shut off service when a computer says the bill has gone unpaid for too long. The customer may not always be right, but due process says he at least has the right to be heard.

In safeguarding the right to due process, the courts now tend to be impatient with narrowly legalistic defenses. When the Supreme Court was considering repossession laws, one lawyer argued that the customer had no property rights since he had defaulted on his contract; Justice Potter Stewart dryly brushed the sophistry aside by observing that the physical possession of the goods by virtue of partial payment of the price and the interest certainly represented "significant property."

Despite the new enlistment of due process in the cause of individual rights, the elasticity of the concept has allowed it to be used by a variety of masters. In the latter part of the 19th century, the Supreme Court ruled that the Constitution gives corporations the rights of "persons"; the court's conservative wing then found a host of economic-reform laws unconstitutional because they deprived "corporate persons" of their property rights without due process. The Justices also ruled that anti-sweatshop laws denied employees their "right" to earn 24-c- an hour in overtime. By invoking due process, many corporations reaped windfall profits at the expense of employees and tax collectors. It was such decisions that finally led to Franklin Roosevelt's controversial effort to pack the court in 1937. Though the plan failed, his view that the Government must have economic regulatory powers finally got through to the "nine old men." As a result, the so-called "substantive" view of due process that so favored large corporations swiftly fell into disrepute.

Meanwhile another view of due process was developing, and it came to fruition during the years of the Warren Court. It reflected Hugo Black's belief that "the due-process-of-law standard is one in accordance with the Bill of Rights." That being so, various Bill of Rights guarantees were made binding in state courts for the first time, thereby vastly expanding the protection available to criminal defendants. In the view of Justices Felix Frankfurter and John Harlan, due process compelled no such sweeping changes, but merely required the court to determine whether or not a trial had been fair.

Today the Burger Court seems sometimes to be heeding Black's absolute view and at other times Frankfurter and Harlan's fairness standard. Going along with Black, it has ruled that anyone facing imprisonment has the right to a lawyer, whether or not he can afford to pay, and that hearings must always be offered before a welfare recipient may be deprived of aid or a parolee stripped of his parole. On the other hand, following the Frankfurter-Harlan argument that fundamental fairness does not require absolute, immutable rules, the court has weakened earlier decisions guaranteeing the right to have counsel at police lineups and to remain silent during interrogation, and it has permitted departure from the right to unanimous jury verdicts in state criminal trials. It is a mark of the Burger Court's perception of "fairness" requirements that in recent years the rules protecting criminal suspects have occasionally been narrowed, while the court's view has also brought a substantially broader interpretation in civil suits.

One implication is clear: administrators and officials are losing their traditional authority to exercise arbitrary power to foreclose, to expel, to coerce. Indeed, they are even seeing a shrinkage of their freedom to make a simple decision. Will their loss lead to greater freedom and fairness for others? The answer is uncertain. One ominous precedent: some small-claims courts, created for the benefit of the individual, have been all but taken over by company lawyers who have mastered all the rules and can use them against unsophisticated buyers. Nancy Le Blanc, a New York lawyer who specializes in welfare cases, is already wary of due process's bounty. "There has been a tremendous increase in the number of hearings held," she says, "but not in the amount of justice dispensed."

Harvard Philosopher John Rawls, in his book A Theory of Justice, observes that fairness can be achieved if similar cases are treated similarly. "The requirement of consistency holds, of course, for the interpretation of all rules and for justifications at all levels. Eventually, reasoned arguments for discriminatory judgments become harder to formulate and the attempt to do so less persuasive." The result, he says, is at least justice with "regularity."

Even granting that Rawls' consistency can be realized, other dangers are still clear. Officials may well cease abuses which they cannot justify at a hearing; but they may also duck making needed decisions to avoid the trouble of defending their actions. Kenneth Gulp Davis, a top scholar at the University of Chicago, unintentionally conjures up another danger in his standard work, Discretionary Justice. "The 1968 version of the Federal Tax Regulations," he says, "fills 4,400 double-column pages, a truly magnificent body of law." But surely that is a body only a lawyer could love. The idea of even 40 double-column pages devoted, say, to the process of fighting with the electric company is enough to leave one yearning for a return to the pleasures of candlelight.

It would indeed be tragic if the humane gains were stifled by an intervening layer of rule-making bureaucrats. But the major point about due process is that its central concern is fairness, not form. Thus it is not inconceivable that some day the concept could be used against hearings, on the ground that they have become an unconstitutional impediment to fairness. For the moment, though, the courts see hearings as a new and crucial element in the effort to extend justice into ever more areas of U.S. life. Americans can hardly quarrel with that perception.

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