DUE PROCESS — The Golden Rule of Principled Government

Golden Rule 1According to the Golden Rule:  Do Unto Others as You Would Have Them Do Unto You.

DUE PROCESS is the Golden Rule of Principled Government.  It is one of the most basic, fundamental,  universal concepts of American government, reflected in both the Utah State and U.S. Constitutions, applicable to many governmental actions:  “No person shall be deprived of life, liberty or property, without due process of law.”  The right of Due Process is considered to be a basic, inherent, inalienable right.  According to one statement of the proper role of government: “The function of government is not to grant rights, but to protect the unalienable, God-given rights of life, liberty, property, and the pursuit of happiness.

At the most basic level, Due Process embodies the the principle of fundamental fairness.  It also embodies the concepts of reasonable and rational decision-making, evenhandedness and the right to be heard.

Due Process 4Due Process serves two basic goals.  One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of protected interests, including life, liberty, and property interests.  The other goal is to treat people fairly, give them their “due” and help people feel that the government has treated them fairly by listening to their side of the story.

Due Process is intended to guarantee basic, fundamental fairness in governmental decision-making.  Fairness can, in various cases, have many components.  Among other things, procedural due process requires fair and reasonable notice and a meaningful opportunity to be heard by an impartial tribunal — before action is taken that impacts any kind of protected interest (life, liberty & property interests — and property interests is a concept that covers a broad spectrum of interests).   The U.S. Supreme Court has stated that when protected interests are at issue, actual (personal) notice is required, as opposed to simply posting a public agenda.

In general, the more important the individual right in question, the more process that must be afforded.  The deprivation of life, for example, is intended to require the most rigorous protections, while suspension of a driver’s license, for example, may not require the same level of protection.

Substantive due process also requires that all governmental decisions must be supported by a legitimate basis (rather than public clamor and/or other arbitrary and capricious factors), and often that there must be specific findings of substantial evidence for the grounds in support of actions and decisions. If the protected interest at issue is what is known as a “fundamental” right or interest (freedom of religion, freedom of speech, property rights, etc.), then the grounds necessary to deprive those interests must be compelling governmental interests. That is the law.

Proper Due Process also serves the important function of separation of powers, and checks and balances in government.

In Sessions v. Dimaya, a very recent U.S. Supreme Court case, the court provided more insight.

“Writing for the majority in a 5-4 decision — and joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor (with Gorsuch concurring in the judgment and much of the opinion) — Elena Kagan wrote: The law’s category, a “crime of violence,” is so indeterminate (“fuzzy,” she said) that deporting Dimaya under it would violate the Constitution’s “due process of law” guarantee. Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed. And they give — actually, require of — judges and law enforcement officials excessive discretion in improvising a fuzzy law’s meaning. In agreeing with this (and disagreeing with John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito), Gorsuch said:

Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The lack of “precise and sufficient certainty” (criteria stipulated by the English jurist William Blackstone, whose writings influenced the Constitution’s framers) invites “more unpredictability and arbitrariness” than is constitutional. Furthermore, the crux of America’s constitutional architecture, the separation of powers, is implicated. All legislative power is vested in Congress. The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law’s prescribed course. With the fuzzy “crime of violence” category, Congress abdicated its “responsibilities for setting the standards of the criminal law.” So, allowing vague laws would allow Congress “to hand off the job of lawmaking.” Hence such laws not only illegitimately transfer power to police and prosecutors but also would “leave it all to a judicial hunch.”

SEE Gorsuch Delivers Hammer on Imprecise Legislation

Millard County Map 1Seeking to bridge the gap between theory and reality, and bring this discussion down to the local level, Due Process represents one of Millard County Government’s most fundamental failures.

Millard County routinely ignores due process on a regular basis, in matters both large and small.  In addition to a pattern of multiple contract and employment terminations without any due process, in 2014 Millard County officials ignored both Due Process and applicable election laws to sway the primary election results.  When Due Process finally was applied — by the courts —  the election results from the affected race had to be thrown out and disregarded.

It seems that old habits die hard.  Other good, basic examples of how this all works in Millard County Government have to do with county contracting and land-use regulation.  The county contracts for procurement of a wide variety of goods and services.  And it has a procurement policy that is supposed to help ensure fairness, evenhandedness, and due process in county procurement decisions.  Unfortunately, Millard County also has a long-established habit of routinely ignoring its procurement policies, and violating due process in a variety of ways, leaving people feeling like they haven’t been heard, and haven’t been treated fairly.

As just one example of how this works, Millard County is currently in the process of developing a county-wide Resource Management Plan (RMP).  To start that process, the county solicited proposals from outside individuals and entities to help draft and develop the plan.  But when the county awarded the contract, it didn’t even attempt follow the procurement policy, and except for the applicant who was awarded the contract, it didn’t bother to give other applicants notice of the decision that had been made, or of their right of appeal the decision based on the county’s obvious non-compliance.

When one of the applicants did seek to appeal the decision based on the county’s failure to follow its own procurement policy, the county then attempted to claim that it was too late to appeal, even though it had never given notice of the decision.  When that didn’t work, the county also attempted to claim that it was not obligated to follow it’s own policies and ordinances — the law.  Then, in order to skirt the law, the county acknowledged that its procurement ordinance wasn’t even legal or enforceable, because the county had failed to publish and provide reasonable notice of the ordinance.  The county’s actions with respect to its procurement policies and ordinance and the Resource Management Plan represented a long chain of due process violations.

Even more recently, in applying its complex and over-the-top land-use ordinances (which were not adopted in accordance with sound principles of substantive and procedural due process in the first place), Millard County has repeatedly failed to provide neighboring property owners, who’s property interests and uses could be jeopardized by the county’s decisions, with fair and reasonable notice and a meaningful opportunity to be heard  regarding the pending decisions.  SEE Due Process & Equal Protection in Millard County — a Case Study.

Corey Kanosh 1Although due process violations are a regular occurrence, in the hierarchy of protected interests, it is not as often that the county engages in actions that deliberately deprive someone of their Life without due process, but even that may happen too.  In 2012, a Millard County sheriff deputy shot and killed Corey Kanosh, an unarmed Native American man.  The deputy claimed that despite the fact that Corey was unarmed, he was still afraid for his life, so he claimed to be justified.  But that isn’t the whole story.  Having created the circumstances that jeopardized Corey’s life, the Millard County Sheriff’s Department was under an affirmative constitutional obligation to undertake reasonable measures to save his life.  Although they were under a constitutional obligation to provide medical care, however, the question is, what, if any, attempt did they make to save Corey’s life? Did they allow first responders to treat him, or did they insure that he would die by failing and refusing to provide any medical attention, and refusing to allow first responders to treat him, or even look at him until they were certain that he was dead?  Was Corey Kanosh afforded Due Process in the conscious deprival of his life? These are questions that neither Millard County nor the Sheriff’s Department have ever addressed or accounted for.

Is this what it means to be treated fairly?  Back to the Golden Rule — is this how you would want to be treated?

Due Process is the Golden Rule of Principled Government.