Civics 101: Have You Already Made Up Your Mind?

As our rural communities face serious decisions about rapid industrial growth, this week we're looking at something fundamental to our constitutional republic: due process.

Imagine spending two years preparing a development proposal, hiring engineers, completing studies and following the rules, only to discover the officials deciding your application have already made up their minds.

Is that a fair hearing, or just a formality?

Now turn it around.

You're a homeowner concerned about a development next door. You've taken time off work to attend the public hearing, only to find the officials seem determined to approve it regardless of what anyone says.

What good is a public hearing if nobody is really listening?

Philosophers and our founding fathers spent considerable time worrying about this question. In fact, Aristotle was thinking about it more than 2,300 years ago.

In his “Politics,” Aristotle argued that government should be ruled by law rather than the personal desires of those in power. Even good people, he understood, can be influenced by friendships, anger, ambition, and self-interest.

His conclusion was that law should be reason, free from passion.

Which is a pretty good argument for having rules in the first place. We don't want the rules changing depending on who owns the property, who knows the mayor, or who happens to be sitting on the county commission this week.

Fast forward to the American founding.

John Adams helped write the Massachusetts Constitution of 1780, which called for impartial interpretation of the law and established a principle fundamental to American government: "a government of laws, and not of men."

Seven years later, James Madison took up a related problem in “Federalist No. 10.”

Madison understood that people naturally form factions, groups united by common interests, opinions, and prejudices. He wasn't particularly optimistic about eliminating those tendencies. Instead, he argued that representative government could help control them by choosing people whose judgment could rise above temporary passions and consider the public good.

Notice Madison wasn't suggesting representatives should have no opinions. We elect people because we want them to exercise judgment. But there's a difference between having an opinion and being unwilling to consider anything that might change it.

Which brings us to due process.

The Fifth Amendment protects against the federal government depriving people of life, liberty, or property without due process of law. The Fourteenth Amendment extends that protection to state and local governments.

We usually associate due process with courtrooms and judges, but it can also apply when local governments make decisions affecting protected rights.

And here's where an important distinction comes in.

Sometimes elected and appointed officials are making laws and policies, acting in their legislative function.

When a city council debates zoning ordinances or a school board sets its budget, officials are expected to have opinions. That's their job. They can campaign on those positions, argue for them, and vote accordingly.

But when those same officials apply existing laws to a particular application or dispute, they may be performing a quasi-judicial function. That means they're acting something like a judge.

Instead of deciding what the rules ought to be, they're deciding whether a proposal meets the rules already established. Depending on the proceeding, that brings additional obligations to consider evidence fairly, follow procedures, and avoid disqualifying conflicts.

An unpopular proposal doesn't necessarily violate the law, and a developer spending millions of dollars isn't automatically entitled to approval.

The responsibility is to apply the law to the facts.

In 1991, the Nevada Supreme Court addressed due process in Bing Construction Co. v. County of Douglas, involving a gravel operation whose existing permit rights were affected by a county decision.

The court found the company had not received adequate notice and a meaningful opportunity to respond before its rights were impaired. It also emphasized the importance of evidence supporting land-use decisions.

In other words, process matters, even when officials believe they're acting for good reasons, which we should remember at our city council, county commission, planning commission, and school board meetings.

The person behind the microphone may be our neighbor, our friend, or someone we've disagreed with for years. We don't have to agree with them, but we should understand what kind of decision they're making, what rules govern it, and whether everyone entitled to participate has been treated fairly.

A fair hearing doesn't guarantee you'll win. It doesn't mean every concern will persuade the board, or that officials must set aside the law because a roomful of people demand a particular result.

It means following the rules, considering the evidence, and keeping an open mind.

We don't elect people to public office because we expect them to agree with us on everything. We elect them because we trust them to exercise judgment.

Sometimes that means making an unpopular decision. Sometimes it means telling a friend no. And sometimes it means listening carefully to someone they fundamentally disagree with.

The founders understood government would always be made up of imperfect human beings, which is why they gave us something more important than the promise of good people; they gave us the rule of law.

And the rule of law only works when the people entrusted to administer it remember that the rules apply to them, too.