Due

Due Process of Law

Due Process of Law

Due Process of Law

In America, all persons are entitled to the due process of law under the 5^th Amendment of the Constitution of the United States of America. It states:

“No person shall …; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

And what have the Courts said about the Due Process requirements ?

"The essential elements of due process of law are notice and opportunity to defend;" Simon v. Craft, 182 U.S. 427, 436, 21 SUP. CT. 836, 45 L. ED 1165

Due process in administrative hearings includes a fair trial conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law, and administrative convenience or necessity cannot override this requirement. Russell-Newman Mfg. Co. v. N.L.R.B., C.A. Tex 1966, 370 F2d 980

Due process requires that when government adjudicate or make binding determinations which directly affect legal rights of individuals, they use procedures which have traditionally been associated with judicial process. Amos Treat & Co. v. Securities & Echange Commission, 306 F2d 260 (1962), 113 US App. D.C. 100

Although administrative agencies may be relieved from the observance of strict common law rules of evidence, their hearings must still be conducted consistently with fundamental principles which are intrinsic to due process of law. Southern Stevedoring Co. v. Voris, C.A. Tex 1951, 190 F2d 275

Administrative due process requires:

(1) opportunity to be heard.
(2) due notice of hearing
(3) fair conduct of hearing
(4) support in record for decision
(5) submission of proposed findings and tentative report
(6) opportunity to file and to be heard upon exceptions to the report

Ideal Farm, Inc. v. Benson, D.C. N.J. 1960, 181 F Supp 62, affirmed 288 F2d 608, Certiorari denied 83 S Ct 1087, 327 US 965, 10 Led2d 128

The requirement of fair trial is binding on administrative agencies as well as on the courts U.S. v. Brad, D.C. Cal 1968

The fair hearing essential to meet minimal requirements of due process includes not only rudimentary fairness in conduct of hearing when and where held, but also reasonable fair opportunity to be present at time and place fixed to cross-examine any opposing witnesses, to offer evidence, and to be heard at least briefly in defense. Jeffries v. Olsen, D.C. Cal 1954, 121 Fsupp 163

A full hearing is one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the step to be taken. Boston and M.R.R. v. U.S., D.C. Mass. 1962, 208 Fsupp 661

Agencies have latitude to expedite hearings in the public interest and to dispense with evidentiary hearings in view of the nature of questions raised after a notice of action is requested, but an agency cannot act on mere inspection of a file without giving notice and opportunity to request a hearing, except in a narrow class of real emergency cases. Pennsylvania Gas & Water Co. v. Federal Power Commission, 427 F2d 568 1970, 138 U.S. App. D.C.

Under the Adminstative Procedures Act, the proponent of a rule or order has the burden of proof. Burden of proof means going forward with the evidence. Bosma v. U.S. Dept. of Agriculture, C.A. 9, 1984, 754 F2d 804

"Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Black's Law Dictionary 500 (6th ed. 1990); accord, U.S. Department of Agriculture v. Murry, 413 U.S. 508 [93 S.Ct. 2832, 37 L.Ed.2d 767] (1973); Stanley v. Illinois, 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551] (1972)

"To rely upon conjecture, either in favor of or against the accused, is not justice. It is not due process of law by any definition." Haley V. Ohio, 332 U.S. 596 (1948)

The Courts and the judges are choosing to ignore these facts of law and rulings, which they are aware of, but which they will not address, They pay lip service to these words, but their revenue related rulings and decisions have ignored them, and are obviously more concerned with an expansion of the unauthorized agenda of an expansion of the federal government and its powers, into unauthorized areas of our lives. The courts have no authority to create new laws or legislation, or to re-write by interpretation the existing laws, changing them from what they actually say. to something else, simply because the courts deem those laws susceptible of improvement, or lacking specificity or clarity (according to the court's "mindset" of universal application).

The Administrative Procedures Act also requires due process be provided. The provisions of this Act apply to ALL government agencies, including the IRS.

Title 5 U.S.C. 556, part of this Act, states:

§ 556. ...Burden of Proof...,
...

(c) Subject to PUBLISHED rules of the agency and within its powers, employees presiding at hearings may, ....

(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. ... (emphasis added)

5 USC 556

and 5 U.S.C. § 558 states:

§ 558. ... Imposition of sanctions...,

(a) This section applies, according to the provisions thereof, to the exercise of a power or authority.

(b) A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.

5 USC 558

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