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DEU PROCESS AND RED TAPE Author(s): James L. Bomar, Jr. Source: Administrative Law Review, Vol. 17 (WINTER-SPRING, 1965), pp. 206-211 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/40708483 . Accessed: 16/06/2014 00:29 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Administrative Law Review. http://www.jstor.org This content downloaded from 185.2.32.106 on Mon, 16 Jun 2014 00:29:47 AM All use subject to JSTOR Terms and Conditions

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Page 1: DEU PROCESS AND RED TAPE

DEU PROCESS AND RED TAPEAuthor(s): James L. Bomar, Jr.Source: Administrative Law Review, Vol. 17 (WINTER-SPRING, 1965), pp. 206-211Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40708483 .

Accessed: 16/06/2014 00:29

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access toAdministrative Law Review.

http://www.jstor.org

This content downloaded from 185.2.32.106 on Mon, 16 Jun 2014 00:29:47 AMAll use subject to JSTOR Terms and Conditions

Page 2: DEU PROCESS AND RED TAPE

DIVISION OF STATE ADMINISTRATIVE LAW

Editor: Frederick Davis Emory Law School, Atlanta, Georgia 30322

DUE PROCESS AND RED TAPE By James L. Bomar, Jr.*

On June 15, 1215, the barons of England, after enduring a long list of oppressive acts, met their king, John, in a meadow beside the Thames, called Runnymede. For five days their pavilions were pitched on that meadow. For five days the king reluctantly listened to their grievances. Then he set his hand and seal to a royal charter, called great at that time because of its length, but called great today because of its significance.

Winston Churchill has said of it: Now for the first time the King himself is bound by the law.

The root principle was destined to survive across the generations and rise paramount long after the feudal background of 1215 faded in the past. The Charter became in the process of time an enduring witness that the power of the Crown was not absolute.

The facts embodied in it and the circumstances giving rise to them were buried or misunderstood. The underlying idea of the sovereignty of law, long existent in feudal custom, was raised by it into a doctrine for the national State. And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success.1

In the framing of the constitutions of the United States and of the several states, the words of this great charter were of consider- able influence and were sometimes quoted almost verbatim. For

• A.B. 1935, Cumberland University; LL.B. 1936, Cumberland University; mem- ber, Tennessee Bar; Lieutenant Governor, State of Tennessee.

i Churchill, 1 History of the English-Speaking Peoples: The Birth of Britain 188-189 (Bantam ed. 1963).

206

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DIVISION OF STATE ADMINISTRATIVE LAW 207

example, Article 1, Section 8 of the Constitution of the State of Tennessee provides as follows:

That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.2

This provision is a wellspring of liberty. It asserts that all men, all institutions, even the State itself, are under the law.

A hundred and seventy years ago little difficulty was experienced in stating and applying the principles inherent in the rule of law. At that time the sole concern of State government was the main- tenance of order and the administration of justice.

Today, however, State governments, even more than the federal Government, concern themselves with almost every aspect of the daily lives of individual citizens. These governments regulate and tax citizens from the moment of birth, and, it may be effectively argued, even beyond the grave.

For example, in Tennessee, which is typical in this regard, the Department of Agriculture alone administers some twenty-four separate regulatory laws - the keeping of bees, the storage and sale of anhydrous ammonia, the hatching and sale of baby chicks, dairies and dairy products, the sale of eggs, commercial feeds, fertilizers, foods, drugs and cosmetics, insecticides, livestock sales, the eradication of plant pests and, diseases, weights and measures, etc.

Licensing boards have been established for each of the healing arts; for contractors; engineers; automobile salesmen; accountants; barbers; funeral directors; real estate brokers; and even well diggers.

The insurance business, the securities business, banks, loan companies, motor carriers, telephone companies, railroads, cor- respondence schools, commercial fishermen, and many other such enterprises are closely regulated.

In addition to the numerous regulatory programs, the states and their local governments also furnish a variety of services to indi- vidual citizens - unemployment compensation, welfare payments, mental and physical health assistance, educational programs, high- ways, parks, recreational facilities, etc.

State agencies engage in regional planning, zoning, urban re- 2Tenn. Const, art. 1, §8.

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Page 4: DEU PROCESS AND RED TAPE

208 SECTION OF ADMINISTRATIVE LAW

newal, the conservation and purification of water supplies, and other such programs designed to permit our expanding population to live creative and fulfilling lives in the years to come.

In order to finance such programs State governments must im- pose a variety of taxes, and, in so doing, must require records to be kept, reports to be made and, of course, money to be paid.

Such programs, therefore, have created a multitude of new rights, duties and remedies. They have also brought forth new agencies and officials to protect and enforce such rights, and to effectuate the programs.

Although not widely noted, it may well be that the most sig- nificant development in American government in the post-war years has been this growth and expansion of State and local gov- ernment. Our failure to recognize this development for what it is, however, has proved costly. The cost is paid in terms of red tape, inadequate procedures, demoralized and poorly trained officials, and, most important, in an ever growing, already widespread, ill-advised and uninformed feeling of unrest and dissatisfaction on the parts of many individuals with the whole framework of government. The time has come to reappraise and to consider how this great investment in government is to be better protected, and such disabilities eliminated.

But the problem also transcends mere matters of cost and effi- ciency. Ineffectual administration is often an indication that a government department or agency is shot through with unfairness and discrimination. Such conditions are at war with the principles which moved the barons of England at Runnymede; with the Great Charter; with the rule of law; and with due process. Seven hundred and fifty years of Anglo-American history have proved that the real foe of absolutism, of tyranny in any form, is law.

If traditional freedoms are to be maintained, the rule of law must be applied to all phases of the state administrative process. Only in this way can the confidence of people in the government be maintained.

The rule of law involves more than abstract principle. It is, first of all, an attitude, the main qualities of which are ã healthy suspi- cion of power coupled with a firm respect for the rights of all individuals. It is also a principle for decision. Any person actually aggrieved by a particular act of the state, and which act he thinks is illegal, is entitled to adjudication of this question before an impartial tribunal and is entitled to a decision which settles this

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DIVISION OF STATE ADMINISTRATIVE LAW 209

question by reference to established legal principles. Finally, it is a standard by which state action is to be judged. It requires that every man should be able to know where he stands before the law and that all in like circumstances shall stand alike.

The revocation of a barber's license, the refusal to issue a bank charter, the denial of unemployment compensation, or an order prohibiting stream pollution, are a fe'y examples of the power which the state exercises over the lives of its citizens, and which must be required to meet the foregoing standards implicit in the rule of law.

Of course, the statement of the ideal is no answer to the perva- sive conflict between rule and discretion, or between the need for general standards as against the need for the distinctive treatment of special problems. Nor is it an answer to the conflict between procedural safeguards and efficient administration, i.e., between red tape and prompt action; nor to the conflict between the general welfare in a program of wide public concern and the individual welfare of some individual citizen whose immediate interests are offended by the program.

The only satisfactory solution to these problems and conflicts is that they be dealt with objectively and with a punctilious regard for the basic fair procedures implicit in the concept of due process of law. The rule of law must be applied at all levels of state administration.

Certainly the problems and conflicts cannot be solved by ignor- ing them, or by pointing with pride to the accomplishments of the past and hoping that momentum will carry somehow through to the future.

Most assuredly increase of governmental power is no solution. Preaching states rights while allowing state institutions to wither

and decay is likewise no answer. Loudly calling for a return to the agrarian past, while boasting

of industrial progress and supremacy is similarly unreasonable. Increasing and strengthening of state services, while opposing

reasonable efforts to pay for them is another example of how not to deal with the problem.

The problems implicit in the increasing responsibility of state government must be met as the great issues of the past were so effectively met. First, the true nature of this increase in govern- mental power must be appraised. It is not the result of schemes concocted by some wicked band of conspirators. It is, rather, the

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210 SECTION OF ADMINISTRATIVE LAW

simple and inevitable result of the democratic process of meeting real needs and requirements. These new regulatory agencies are not the creatures of some tyrannical despot. We have created all of them ourselves. And we must remember that government is still our servant, not our master.

Just as in earlier times the reforming and liberating influence of chancery soon evidenced a need for definition and regulation, so do the administrative agencies of today indicate a need for stronger structuring. A body of state administrative law and a pattern of fair and impartial administration of power need to be developed. Six areas in which efforts must be directed follow.

First: Minimum uniform standards of administrative procedure need to be established. As the draftsmen of the Revised Model State Administrative Procedure Act have stated, certain basic prin- ciples of common sense, justice and fairness can and should prevail throughout the administrative process. These principles include:

A. Opportunity for affected persons to participate in and to petition for exercise of the rule-making function;

B. An adequate means of making all administrative rules known and available to those who desire them;

C. Assurance of fundamental fairness in administrative hear- ings, including adequate notice, the exclusion of unreliable evi- dence, the opportunity critically to examine the credentials and sources of the opposition's evidence and argument, and a proper separation of functions;

D. Appropriate procedures for judicial review; Second: while recognizing the need and importance of flexi-

bility and discretion in the work of any administrative agency, more precise statements of standards governing agency action are desirable goals. Such standards must be sufficiently definite to enable reasonably competent lawyers and their clients to be able to identify the precise considerations which will control results, and must require that all agencies give rational, understandable reasons for such results.

Third: New procedures to expedite the business of adminis- trative agencies must be developed. For example, in the typical utility rate hearing, by the time a final decision is reached, all too often the facts on which it is based have changed. Expeditious disposition of problems is one of the prime reasons for creating administrative agencies. Red tape defeats this purpose.

Fourth: A body of well trained, adequately paid administra-

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DIVISION OF STATE ADMINISTRATIVE LAW 211

tive officials with a tradition of impartial dedicated service is indispensable to the maintenance of the rule of law as well as to effective administration. No one thing has contributed more to the general disrespect for state administrative agencies than the appointment of ignorant men to positions requiring expert knowledge.

Fifth: New means of making administrative action responsible and accountable to the people it serves should be explored. Judicial review and political sanction at the polls are not enough. Effective remedies are more important than abstract declarations of great principle.

Sixth: Professional and public recognition of the importance of state and local administrative agencies must be nourished and encouraged. The agencies which govern must earn popular respect»

Due process and red tape; the rule of law and arbitrary action; efficiency and delay; freedom and authority, all of these ancient dilemmas confront us anew in the creation and operation of each and every state agency.

Thus do circumstances make clear that this great experiment in liberty has not run its course. Yet, democracy does work, and the rule of law, with its objective standards and goals for orderly government, protects us still, if we will but apply it.

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