Are We Overdoing Procedural Due Process of Law? Discussion on this subject, "Are We Overdoing Procedural Due Process of Law?", was held on May 17, 1956, in the Bellevue-Stratford Hotel, Philadelphia, during the Twenty-Seventh Annual Meeting of the Association of Interstate Commerce Commission Practitioners. Honorable Owen Clarke, Member of the Interstate Commerce Commission, led the discussion. Frank E. Mullen, Chief Examiner, Bureau of Formal Cases, and Paul Coyle, Chief, Section of Complaints, Bureau of Motor Carriers, both staff members of the Interstate Commerce Commission; George F. Galland, member of the law firm of Galland & Kharasch, Washington, D. C.; Homer S. Carpenter, member of the law firm of Rice, Carpenter & Carraway, Washington, D. C.; and James W. Nisbet, Commerce Counsel, Association of Western Railways, Chicago, also took part in the discussion. Remarks of each of these speakers follow, as presented, and include each one's answers to questions from the floor. HONORABLE OWEN CLARKE, GROUP LEADER It cannot be questioned that the guaranty of due process of law is one of the most important to be found in the Federal Constitution. Indeed, without it the right of private property could not be said to exist in the sense in which it is known today. By reason of this guaranty, everyone is entitled to the protection of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. The guaranty is always and everywhere present to protect the citizen against arbitrary interference with his rights. It inhibits the taking of one person's property and giving it to another, contrary to settled usages and modes of procedure, without notice and opportunity for a hearing. Daniel Webster's Definition of Due Process of Law One of the most famous and perhaps the most often quoted definitions of due process of law, is that of Daniel Webster in his argument in the Dartmouth College case, in which he declared that by due process of law is meant "a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial." Certainly no one challenges the wisdom or desirability of this principle which is so deeply imbedded in our system of jurisprudence. While no precise definition of the phrase "Procedural Due Process" has been found, the Supreme Court undertook to describe it in a Gas Rate case in these very general terms: "We are concerned only with the question of procedural due process, that is, whether the Commission in its procedure * failed to satisfy the requirements of the Federal Constitution. ✦✦✦ The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement.' Are we overdoing procedural due process of law? The inference to be drawn from the title of this afternoon's discussion is that perhaps we have been needlessly enlarging upon the requirements of due process to such an extent that the basic purpose or function of administrative procedure is being defeated. In fact, the opinion has been expressed that in striving to accord all litigants "a fair and open hearing" a multitude of administrative deficiencies have arisen which are not in the public interest. Problems of Transportation Are Business Problems The problems of transportation regulation, of course, are essentially business problems. Is it possible to deal effectively with them in the atmosphere of a formal proceeding? Is the stiff legalistic approach a serious obstacle to business statesmanship? The charge has been made that the adversary air which tends to surround most formal proceedings is not conducive to the development of positive results. Some critics contend that the aspects of a game or contest which envelops the respective advocates in formal cases inevitably makes for bickering and bitterness, as well as for delay and expense. These are some of the charges and counter charges we will explore this afternoon in an effort to find the answer to the $64,000 question, "Are We Overdoing Procedural Due Process of Law?" Two members of our panel will discuss matters directly related to the requirements of due process, namely, (1) what constitutes adequate findings of fact and conclusions of law in Commission proceedings, and (2) to what extent should the public testimony of shippers or passengers be limited or eliminated in either certificate or finance cases? The other three panelists will discuss the Commission's use, or lack of use, of declaratory findings and orders, ex parte investigative proceedings, rule-making powers, and discovery procedures-all administrative devices designed to expedite and simplify the regulations of carriers while preserving the rights of the parties in accordance with accepted standards of due process. I am sure that we will find all of the discussions informative and profitable. At the conclusion of each speaker's remarks we will have approximately fifteen minutes for audience participation. You may ask a relevant question or make a statement agreeing or disagreeing with what the speaker has said. The first sub-topic is, "Should Broader Use be Made of Declaratory Findings and Orders Under the Administrative Procedure Act?" It is a pleasure to present the Chief Examiner of the Bureau of Formal Cases, Mr. Frank Mullen. SHOULD BROADER USE BE MADE OF DECLARATORY FINDINGS AND ORDERS UNDER THE ADMINISTRATIVE PROCEDURE ACT? FRANK E. MULLEN, Chief Examiner and Director Bureau of Formal Cases Interstate Commerce Commission In considering this it is important to consider the meaning and effect of declaratory orders to determine how they may properly be used in administrative proceedings. If their purpose is clearly understood it is possible that broader use may be made of them. At the outset, declaratory findings or orders should be distinguished from "advisory opinions." The latter differ from declaratory orders in that they do not have binding effect and are not reviewable by the courts. The Commission has a Board of Reference to which requests for advisory opinions are occasionally assigned, but advisory opinions. are usually given at the Bureau level. Sometimes such advisory opinions create a demand for the issuance by the Commission of a declaratory order in the same matter because of disagreement with the opinion. See American Barge Line Co. Petition for Declaratory Order, 294 I. C. C. 796. Declaratory Orders Defined Declaratory orders are the administrative equivalents of declaratory judgments designed as in the case of the latter to furnish guidance and certainty in many relationships where otherwise it might be necessary to proceed at one's own risk. The remedy is designed to satisfy needs not satisfied by coercive remedies, that is, its purpose is to prevent harm rather than to provide redress for injury. It is prospective not retrospective. At the present time, declaratory findings and orders under the Administrative Procedure Act are not extensively used by administrative agencies. That is due partly to the fact such findings and orders are permissive only, partly to the limited field for their use within agency functions, and partly to reluctance of administrators to issue them. That reluctance, apparently, is based on a disinclination to undertake to remove uncertainty, in a petitioner's mind, as to the legal effect of a proposed course of action where no actual controversy exists and thus to approve or disapprove the proposed action in advance. Admittedly, it would be desirable in many instances to remove uncertainty to aid the petitioner but it must be considered that the effect and results of a proposed action can not be anticipated, and hence the exercise of the discretion to pass on such an action in advance must be sparingly employed. The agency may find itself in the position of having to defend the validity of its declaration when no challenge to the petitioner's proposed course of action has been made by anyone. And that is so because declaratory findings and orders are effective reviewable orders. Their purpose is to bind both the agency and the petitioner to the same |