BAR and Due Process

http://sports.espn.go.com/ncf/news/story?id=4527376

This story, although directly unrelated to the automotive industry, brings to mind several legal tenets that are applicable to any situation regarding dealing with the State in any way, shape, or form. Whether we’re talking about mechanic’s liens, professional licenses, BAR 97 machines seized by the Bureau – any action taken by the government, the state, a state agency, a state employee, or someone who represents the states interest is subject to immense requirements of due process.

Allow me to elaborate.

The Due Process Clause of the Fifth Amendment guarantees that no person shall . . . be deprived of life, liberty, or property, without due process of law. Precedent has established the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property. 510 U.S. 43 UNITED STATES, PETITIONER v. JAMES DANIEL GOOD REAL PROPERTY ET AL.

The right to prior notice and a hearing is central to the Constitution’s command of due process. The Supreme Court has held:

“The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property. 510 U.S. 43 UNITED STATES, PETITIONER v. JAMES DANIEL GOOD REAL PROPERTY ET AL.”

At the core of the due process clause is the right to notice and a hearing “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965). “Ordinarily, due process of law requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.” 882 F.2d 1398; 1989 U.S. App.

The Court has held the requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decision-making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. Connecticut v. Doehr, 501 U.S. 1 (1991).

Only in extraordinary circumstances involving “‘the necessity of quick action by the State or the impracticality of providing any [meaningful] predeprivation process'” may the government dispense with the requirement of a hearing prior to the deprivation. Ibid.

So, how may you ask, does this apply to the current situation? What’s interesting about the article is that there was a conversation held between Blount, his family, AND A LAWYER.

Chip Kelly can grandstand all he wants. He can say the presence of an Attorney had no bearing on his decision of whether or not to reinstate Blount, but the legal eye knows better.

You see, Oregon University is a state university, meaning it is run by the state, for the state. Because it’s a state run facility, it necessarily follows that the university is an extension of the government, and hence part of the state, such as the police, regulatory agencies, etc. Any time the states hands are involved in an entity, from public parks, schools, police and sheriff’s departments, they are subject to the requirements of due process – requiring “notice and opportunity to be heard” in “some form of hearing” before the deprivation of rights.

Barring Blount from playing football for the University of Oregon isn’t illegal – I’m not suggesting the court has the power to tell Chip Kelly who to start at running back, however, when someone has a right, and the state (here the U of O) takes away that right, for whatever reason, they must succumb to the substantive and procedural due process protections afforded under the law.

The chance or ability to try out or otherwise play football as a student of the University of Oregon is a property right – plain and simple. It’s a right afforded to all students of the U, by virtue of enrollment into the U, subject to NCAA guidelines and such, but he has the right to make the team, and if he makes the team, play for the team. If the University takes that right away, it’s a deprivation of a property right, and thus, subject to due process protections.

Now then, this hearing doesn’t necessarily have to be formal hearing in court, however, the more important the property rights, the more due process protections are required.

Here, if I’m the attorney, I’m making the argument that this deprivation was huge. We’re talking taking away the ability to play D-I football for a top 50 program. We’re talking active scouting by professional teams, leading to successful careers in the NFL with millions of dollars at stake. At a minimum, the behind closed doors decision between Kelly and Bellotti, the Athletic Director in this case, smacks of lack of notice and opportunity to be heard by Blount in a manner consistent with the due process requirements enumerated by the Constitution and aforementioned case law.

Some of the protections involved in due process requirements in a case like this generally include the ability to present a defense, separate the prosecutorial function from the investigative function, the right to be heard in front of an impartial tribunal, present witnesses, and generally defend the accusation that what transpired requires the action(s) suggested by Kelly, namely a year long suspension.

I’d have to cross check this against the Federal APA and Oregon equivalent, but I’m willing to bet the farm such procedural and substantive protections weren’t followed.

I’m not suggesting it’s not the right action. I’m not suggesting he should or should not be allowed to continue to play. That’s not my call, nor should it be. I’m suggesting that in that meeting, if I’m the attorney, I make it very clear that the U of O is a state actor, falling under the realm of due process protections, which, as it appears from what transpired, they did not allow at minimum, notice and opportunity to be heard in defending against the accusations before removing him from playing in games for the rest of the season.

I would further enumerate that such administrative action by the state falls under various civil right tenants of both the Federal and State Constitutions, having a profound effect, albeit indirectly, into pursuing a particular trade or profession, a right enumerated in the constitution, (see, life, liberty, and the pursuit of happiness extrapolated under volumes of case law by the Supreme Court regarding the practice of a particular profession or trade a tenet of these principles) and could potential result in the loss of millions of dollars, easily provable with previous years draft picks, scout reports as to where he would have been drafted had the State not violated his rights, and subsequent earnings to follow.

I don’t threaten the University, I suggest that if this is not reconsidered, or at the least, provide an opportunity for him to return to the team in due time, we might be forced to file a very public, very ugly, very time consuming, very distracting, and extremely detrimental to everyone, affecting the University, the State of Oregon, Kelly’s career aspirations, Bellotti’s tenure as AD, University endowments and gifts, and no doubt recruiting. I merely suggest it might be beneficial for the University to reconsider their actions in light of what transpired.

I’m sure the Attorney in question considered all these angles. I’m sure he presented an “effective” defense to the blanket denial to play for the rest of the year. Luckily, Kelly has “the impassioned plea of his mother” to fall back on, but sure as rain in Oregon, the lawyer was the difference maker. I’m sure Kelly and Bellotti went and talked to their General Counsel, who looked at the facts and agreed the suit would have merit – so reinstate him somehow, because this will be a mess for the University – we screwed up.

Enter Lawyer – enter result desired by the client, here Blount.

So, how does this apply to automotive defense law?

It’s simple – anytime the state takes action against you – and I’m talking citations, submitting customer complaints to the Bureau, the DMV, license issues, seizing equipment, prosecution by the district attorney, the attorney general, or anyone in between, they are subject to due process protections.

Here, I guarantee you that the presence of an Attorney was a difference maker. Think of the immense amount of pressure he could have caused by suggesting the lawsuit that could follow if they did not allow Blount to return.

Your right to practice your chosen profession is no different than Blount’s. It’s entitled to the same protections.

Likewise, think of the lawsuit that would follow if the BAR, the DMV, the DA, the AG, or anyone else involved in regulating the automotive industry weren’t reminded of the need to succumb to these due process requirements before a decision is made in haste. Many times, when going up against shops, due process requirements and protections are thrown out the window. Why? Because they know there’s not a lawyer who knows how to help shops and technicians.

Now you know better. Before having a conversation with the BAR, the DMV, AG or DA, you call us – we’ll straighten them out.

-William Ferreira

BAR and Due Process
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