Notice and a Hearing

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When you make procedural due process claims in your case arguing that you didn’t receive adequate procedural due process protections, your judge may argue that they provided you with notice and a hearing. Your judge may argue that this is sufficient to protect your rights but they are wrong.

The Supreme Court case that held notice and a hearing were the minimum requirements of procedural due process was a Social Security administrative proceeding, not a judicial proceeding, Mathews v. Eldridge, 424 US 319 (Supreme Court 1976). The standards are much lower in administrative proceedings than in judicial proceedings. Notice and a hearing is the minimum standard in administrative hearings. The minimum for judicial hearings is higher.

One of the minimums in a judicial proceeding is that the decision-maker must be neutral and impartial while strict neutrality is not required in some administrative proceedings. Where fundamental rights are at issue, the burden of proof switches to the state and the state must demonstrate that its actions meet substantive guarantees. This is a minimum standard for your proceeding. This standard is also reflected in the federal Code of Judicial Conduct under canon 3 and should also be in your state’s code. What this means is that there is absolutely no legitimate way for your judge to deny this requirement nor can they require you to cite cases to support it. You might consider citing canon 3 of the code as a shortcut and a way to cut out unnecessary words in your pleadings.

What you need to do early in the proceedings is to make a formal challenge to the procedural due process being provided by the trial court. Once you make this challenge, the court is supposed to perform a constitutional balancing test following the rules established in Mathews v. Eldridge.

You should have your attorney specifically request the trial court to perform this test in the record when you make the challenge. If your trial court fails to perform the test or fails to perform it adequately, you are primed for a mandamus appeal prior to trial.

You argue that fundamental rights are at issue, Troxel, including First Amendment protected speech, association and worship rights, Board of Directors of Rotary Int’l. This means that the procedure provided must be sufficient to protect these rights.

A key aspect of a balancing test is the prior performance of a substantive rights analysis. This analysis identifies the private interests at issue in the proceedings. Different substantive rights mandate different procedural protections. This is where you take all of the information provided in our declaratory relief motions to argue that each of the substantive rights identified in those motions is at issue in your proceedings.

The trial court must take every single one of these private interests and weigh those against the state’s asserted interest.

Keep in mind that the trial court’s viewpoint regarding the best interest of the child is not a compelling state interest, Grutter, and viewpoint-discrimination is not permitted as a state interest. The trial court’s viewpoint has to be supported independently with a compelling state interest or it is simply invalid. Additionally, the trial court’s broad statement that its actions are in the child’s best interest are not sufficiently narrow to support specific infringement of a fundamental right. Narrow specificity articulated on the same plane of generality is required.

The important point here is that if fundamental rights are at issue which demand a compelling state interest, the trial court cannot make a best interest determination because it simply isn’t a compelling state interest.

The simple fact of constitutional law is that if you trial court fails to perform this test adequately when procedure is challenged, everything that follows is illegal and void. This is an issue that provides for solid mandamus review and solid appeal.

Your trial court will likely try to gloss over this balancing test if they perform it at all. You need to be prepared to shred their analysis and put in their face that they are full of crap. You need to do this to give them an opportunity to fix the issue, before you go to appeal.

Remember, appeals take a long time. Anything you can do to compel your trial court judge to do the right thing at trial will save you a lot of heartache.

The objection to any violation of due process is of course to object as a violation of due process but you may also want to object as a violation of the supremacy clause because that clause grants the state trial judge federal jurisdiction to answer the due process questions, requires that the court exercise that jurisdiction properly, and directs the trial court to resolve federal questions using only federal law, not state law.

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