Worrall v. Ogden City Fire Department ( 1980 )

HALL, Justice:

(Dissenting).

I respectfully dissent from the position adopted by the majority, as it creates, in my view, an unprecedented and unwarranted extension of the notice requirement of due process.

The constitutions of the United States ¹ and the State of Utah ² mandate that when life, liberty, or property are placed in jeopardy by reason of state action, due process must be accorded the individual or individuals to be affected by such action. The bare essentials of due process have been characterized as (1) notice of the proposed action, and (2) an opportunity to be heard on the matter.³ While the question was long disputed by the courts, it is now generally recognized that public employment is a property right, termination of which demands the observance of due process by the administrative body involved.⁴ It must be noted, however, that the sufficiency of “notice” for due process purposes is more limited in administrative matters than in other areas of the law. To meet the demands of due process, administrative notice need only properly apprise the individual involved of the basis of the action intended.⁵ It is also to be observed that administrative procedures such as those outlined by the statute here in question,⁶ where the administrative agency terminates a benefit prior to hearing and inaugurates no proceedings on its own, but merely affords the individual the right of appeal, have been upheld as not violating due process requirements.⁷

Notwithstanding the foregoing, the majority reasons that it was not enough for the defendant to notify plaintiff of his termination, following a period of suspension and repeated warnings. Neither was it enough that plaintiff be given a clear explanation of defendant’s reasons for the action, nor that plaintiff have ready access to all relevant information relating to the process for pursuing legal review of the action.⁸ Furthermore, the majority avers that due process requires defendant to furnish plaintiff with a summary of the legal restrictions surrounding the appeal process, and set forth the means whereby he can challenge the defendant’s action. Such a radically inflated concept of the elements of notice, for purposes of due process, is without counterpart in any other area of the law.

One seeks in vain, for example, to find such requirements in the area of standard litigation before state district courts. Where a litigant fails to file an answer to a complaint, or otherwise to plead in an action, within the prescribed time limit,⁹ the opposing party is entitled to an entry of default, and to a judgment thereon.¹⁰ Various grounds exist for setting aside such a judgment,¹¹ but nowhere is it suggested that the judgment may be avoided by reason of the adverse party’s failure to notify the defaulting party of the applicable time limit, or to outline for him the appropriate response to make. A similar situation exists when a party seeks to appeal the decision of a district court. A definite time limit is imposed for the filing of such an appeal, neither the trial court nor the respondent is obliged by due process to point out such restriction to the appellant.¹² If there exists a reason to grant to a person contemplating administrative appeal a greater degree of due process than that afforded a party litigant in state court, the majority fails to point it out.

As already alluded to, the majority’s suggestion is particularly unfortunate in light of the facts of the present case. Plaintiff was deliberately challenging the viability of the regulation dealing with beards and mustaches. His actions spread over a considerable period of time. His temporary suspension prior to termination left him in no doubt that defendant intended to abide by the provision. One can only conclude that he was prepared, well in advance, to offer legal challenge to any attempt by defendant to dismiss him. By his own admission, the regulations dealing with proper administrative appeals procedure was readily accessible to him. In his own words, “It just never entered my mind to read it.” Where it so clearly appears that plaintiff was orchestrating a legal confrontation, due process can hardly be invoked to claim that he must now prevail in that confrontation due to the defendant agency’s failure to rescue him from his own failures.

It is an axiom of American law that an individual’s ignorance of the law, or of a statutory provision, may not be raised to defeat its application to him in a legal action.¹³ The majority opinion carves out a major exception to this rule applicable only to administrative agencies. Without any apparent qualification, the agency is thereby constituted legal advisor to all employees facing termination.

For the above reasons, I would affirm the decision of the lower court.

CROCKETT, C. J., concurs in the dissenting opinion of HALL, J.

1 .Amend. XIV, Constitution of the United States.

2 . Art. I, Sec. 7, Constitution of the State of Utah.

3 . 16 A C.J.S. Constitutional Law § 569(4); Gribble v. Gribble, Utah, 583 P.2d 64 (1978); Christiansen v. Harris, 109 Utah 1, 163 P.2d 314 (1945).

4 . Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

5 . See generally, 1 Davis, Admin. Law Treatise, §§ 8.04 and 8.05.

6 . U.C.A., 1953, 10-10-21 (now 10-3-1012).

7 . MacBeth v. State of Utah, 332 F.Supp. 1191 (D.C.1971).

8 . Plaintiff had apparently planned to seek legal review of the actions of the defendant some time prior to his termination.

9 . Rule 12(a), U.R.C.P.

10 . Rule 55, U.R.C.P.

11 . Rule 60(b), U.R.C.P.

12 . Rule 73(a), U.R.C.P.

13 . 58 Am.Jur.2d, Notice, § 21; Smith v. Mahoney, Utah, 590 P.2d 323 (1979); Kent Club v. Toronto, 6 Utah 2d 67, 305 P.2d 870 (1957).