Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has explained that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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.” 1 The notice requirement may include an obligation to take “reasonable followup measures” that may be available upon learning that an attempt at notice has failed.2 In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.3 Ordinarily, service of notice must be reasonably structured to assure that the person to whom it is directed receives it.4 However, the notice need not describe the legal procedures necessary to protect one’s interest if the procedures are otherwise set out in published, generally available public sources.5

While due process often requires the government to provide a person with notice and an opportunity for a hearing before depriving the person of a protected interest,6 there are some circumstances in which the Court has held those procedural protections are not required.7 For instance, persons adversely affected by a law cannot challenge the law’s validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view.8 Similarly, when an administrative agency engages in a legislative function, for example by drafting regulations of general application, it need not hold a hearing prior to promulgation.9 On the other hand, if a regulation affects an identifiable class of persons, the Court employs a multi-factor analysis to determine whether notice and hearing is required and, if so, whether it must precede such action.10

Footnotes

1

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson Cnty., 517 U.S. 793 (1996) (res judicata may not apply where taxpayer who challenged a county’s occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

2

Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied a tax delinquency, was returned by the post office marked unclaimed; the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so).

3

Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970).

4

Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1972); Greene v. Lindsey, 456 U.S. 444 (1982).

5

City of West Covina v. Perkins, 525 U.S. 234 (1999).

6

E.g., Twining v. New Jersey, 211 U.S. 78, 11 (1908) (stating that those requirements “seem to be universally prescribed in all systems of law established by civilized countries” ); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

7

Notice and a hearing is not always needed before collection of taxes. See Amdt14.S1.5.7.1 State Taxes and Due Process Generally.

8

Bi-Metallic Invest. Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982).

9

United States v. Fla. E. Coast Ry., 410 U.S. 224 (1973).

10

Id. at 245 (distinguishing between rule-making, at which legislative facts are in issue, and adjudication, at which adjudicative facts are at issue, requiring a hearing in latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908). One factor the Court considers in this analysis is whether agency action is subject to later judicial scrutiny. Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246–47 (1944).