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Many committees operate by Robert's Rules of Order, but there are others that have no fixed rules and I have observed public committees in some cases acting arbitrarily. Is it a violation of due process if a public committee that governs administration of municipality to act with no written rules or procedures?

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  • As long as the committee acts fairly and legally, I don't see how it would be a violation of due process to not follow written rules. In fact it could be argued that procedures are more fair if the committee is allowed to ad-hoc adjust procedures to follow current beliefs rather than old procedures. I'm not sure how to answer this (factually, without opinionated or discussion-type answers) though, are you looking for some regulation or court ruling requiring written procedure in the evaluation of due process? – Ron Beyer Dec 2 '18 at 4:20
  • What kind of "committee" would this be? Is this legislative or quasi-legislative, or quasi-judicial, or administrative or what? – David Siegel Feb 5 at 18:08
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In most cases, the failure to use Robert's Rules of Order will not be a violation of due process. To be a violation, (1) due process must be required; and (2) the procedure must either (a) fail to satisfy the elements of due process (notice and a hearing); or (b) be inadequate.

Was due process required?
As a threshold matter, the Fifth Amendment provides due-process protection only when you are going to be "deprived of life, liberty, or property." The vast majority of government action comes and goes without anyone being deprived of any legally cognizable life, liberty or property interest. This would probably include votes to approve a budget, name a street, designate a holiday, and so on. In those cases, no one is entitled to due process under the Fifth Amendment.

Was due process provided?
But the government often does implicate those interests, in matters across the spectrum of seriousness, from imposing the death penalty to imposing jail time to seizing property to handing out parking tickets.

Determining whether the Fifth Amendment is satisfied involves two tests. First, you'll look to see whether the basic elements of due process are satisfied. That means looking for (1) notice of the decision to be made; and (2) an opportunity for the affected person to make their case; (3) before a neutral decision-maker.

In the absence of those elements, there is no due process.

Was the procedure adequate?
But even when those elements are present, the process may still be "inadequate," as you're suggesting the committee procedures are here.

When the government provides procedural protections, they must be "tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard.” Mathews v. Eldridge, 424 U.S. 319, 349 (1976).

You've suggested that Robert's Rules would be the appropriate way to provide due process. Under Eldridge, a court would determine whether that additional safeguard (or any other) was required by balancing three considerations:

  1. "First, the private interest that will be affected by the official action." Is the government trying to take your home and sell it to developers or is it holding your car until you pay off your parking tickets? It's not clear what kind of committee you're imagining, but the greater deprivation it can work, the greater greater protections it must provide.
  2. "Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Is there any objective evidence that the current system is getting the wrong results? Is there any reason to think that the proposed change would result in more accurate decisions? If there's some reason to think that Robert's Rules is going to result in better decisions, it's more likely to be required. If it's not, don't expect a court to require it. I'd argue that this is the most important part of the test.
  3. "Finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." How important is the objective the government is trying to achieve? Ensuring public health and safety are toward the top of the list, so the government will get a little more leeway in determining how to handle them. Fining people for letting their grass get too tall is less important, so the government isn't going to be given as much license to screw around. Then, given the importance of those functions, this basically becomes a test for practicality. Would the proposed change impose serious administrative burdens? Would it be cost-prohibitve? You can impose Robert's Rules probably for nothing more than the cost of a copy of the book, but properly applied, it's an incredibly complex process that imposes serious administrative burdens.

Without knowing what kind of committee action you're talking about, it's hard to say how these rules would apply, but I'm comfortable guessing that Robert's Rules would not be required.

But assuming that the committee has the power to work some kind of deprivation of life, liberty or property, it probably would be a due-process problem if they had no rules of order whatsoever. This was sort of the same problem that arose in CNN v. Trump just last month.

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Due process generally means, in the US, that when an individual's rights are affected by an administrative action, that person must be given notice and a meaningful chance to be heard.

As described in this ballotpedia article The Massachusetts Open Meetings Act requires acess and has some procedural requirements Among the relevant provisions:

The act defines government body as all commissions or boards created by either the legislature or the executive and all the boards and committees that have been created by the general court to serve a public purpose. The definition also includes committees and agencies of all political subdivisions. (Chapter 30 sec 11 A)

The act requires all public bodies to post notice 48 hours in advance of any meeting (Chapter 30 sec 11 A)

The act requires that governmental bodies keep minutes of all meetings including the time and date, the members in attendance, any discussions had and any votes taken. Voting cannot be done in secret and must be recorded on the minutes. Anyone has the right to record an open government meeting. (Chapter 30 sec 11 A)

According to the Wikipedia article Government of Massachusetts :

A 2008 report by the Better Government Association and National Freedom of Information Coalition ranked Massachusetts 43rd out of 50 states for government transparency, and gave it a failing grade of "F" taking into account time, cost, and comprehensiveness of access to public records.

In the state of Massachusetts cities and towns may adopt and modify charters (effectively local constitutions) without state approval, subject to then limits on local authority in state law. I don't find any additional provisions mandating specific procedures for local government bodies including committees, but there may well be ones that I have missed.

I am not aware of any general US law requiring a US local government to adopt specific procedures, although many do so, and some states mandate such adoption (I believe that NJ does, for example). If an individual believes that a particular local government is acting in such a way as to deprive him or her of due process or other Federal Constitutional rights, a civil suit under 42 USC Section 1983 (the civil rights law, dating from 1871) could be undertaken.

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