PODCASTEnvironmentally Speaking EP 19: Due Process

December 21, 20210

This week we are going to discuss due process in the context of a municipal setting, but the concept of due process can apply, as well, to any government body, state, municipal, federal. Without getting too much into the weeds here, there are two different types of due process considerations. One is called procedural due process and the other is substantive due process.

Transcript: Due Process

CLARICE: All right. Welcome, everybody. Hi. This is Environmentally Speaking.MARISA: I am Marisa Desautel an attorney with few decades of experience.

CLARICE: And I’m Clarice. I’m coming at you with questions, comments, thoughts from the audience. Last week I think I might have done something that I thought was funny, but I think you might have hot it was a little cruel. I talked about the possibility of woolly mammoths and asked for your hot take. So I won’t do that this week. But instead I had a later holiday recommendation. You know, tis the season for giving and gifts and we’re constantly being flooded with like Amazon steal of the day and a Cyber Monday thing.

So I kind of wanted to – I tried this for myself and it’s been a little bit more challenging, but I want to pass it on to all of you guy whose are still shopping. But try to think of a gift that could fit the person you’re giving as well as maybe be a more sustainable option or maybe be a smaller business where it may not be as massive of a waste situation like where Amazon everything comes in its own box and it’s so convenient.

Amazon with two days, it could not be more convenient and it could not be more tempting, but I tried to do something a little bit more sustainable this year and, you know, even that can – if you’re creative that could extend to your wrapping or how your present your gifts, but companies like Rothy’s where their shoes are made of water bottles or I’ve recently found a sweater company that makes their sweater fibers from used oyster shells. I don’t know how. I have no idea how they do it, but they’re beautiful fisherman sweaters and they’re really durable and they were just – like what a cool concept. So I’m going to –

MARISA: [inaudible].

CLARICE: I will have to find it. I’ll Google it as we keep going, but they were really cool sweaters. So that’s my challenge and maybe me being on my soapbox a little bit for everybody this gift giving time.

MARISA: [inaudible] and I will take the name of that sweater company. I’m always looking for clothes.

CLARICE: Yeah. So what are we talking about this week? What’s our theme of the week?

MARISA: The theme of the week this week was due process in the context of a municipal setting, but the concept of due process can apply, as well, to any government body, state, municipal, federal. Without getting too much into the weeds here, there are two different types of due process considerations. One is called procedural due process and the other is substantive due process. So when you think about due process, you probably – well, maybe, not probably, you maybe think about the U.S. Constitution because there’s whole clauses on the notion of due process. But the theme for the office this week was not – you’re not invoking the constitution when these issues arise necessarily.

[0:03:28] CLARICE: This isn’t like a Law & Order kind of [inaudible].

MARISA: Yeah. Yeah. But the argument still applies. As an attorney when you make an objection in a matter or provide a legal argument in a matter, you don’t yell out anything about the constitution really. You just say, this is a violation of my client’s due process. So when you hear the phrase due process, know that it attaches to the constitution, but people don’t generally get up and start spouting off about the constitution unless you’re in the U.S. Supreme Court.

Okay. So due process can be implicated where a government body does not comply with either a formal time frame for providing notice and/or certain materials to the public. They can do that by posting it to their website. They can provide mailing notice. Some statutes require publication in a newspaper of general circulation. Some entities post of the Secretary of State’s website, so you’ve got a few different avenues. But regardless of which type of vehicle you use to provide notice and due process, you have to provide that notice with enough time to provide the opportunity for the public to review and be prepared to address the issues that the government actor is acting upon.

CLARICE: So to pull it back a little bit and to kind of use the title as its own explanation, there is a certain process in which you need to provide information and if the government agency or whatever acting body fails to follow that process you are due some sort of recourse. There’s some sort of correction that you have a right to assert. So to kind of take its own title, there’s a process that is due in order to give notice.

MARISA: Right. Yeah. Exactly.

CLARICE: So if you’re in law school, do not write that definition down. That was super wordy. Your book has something better.

[0:06:12] MARISA: Yeah. That’s right. And the recourse will depend on the circumstance. There’s a joke in the attorney world that the answer to every question is it depends.

CLARICE: Oh, it’s so painful.

MARISA: And that’s true for due process because the facts in every situation are so different. And in the context of the municipal setting where you might be before a zoning board or a planning board or a city or town council, the objection – you can make an objection if you think there’s a violation of due process, but ultimately it’s up to that government body to decide how they want to handle your objection. So, for example, if you make an objection and say the agenda for this meeting was not posted with adequate time and the materials were not made available for the public to review, I’m objecting and my client requests a continuance, we need more time, put this matter over to the next available meeting date, now the town can say yes. They can say no. Or in my experience what happens most of the time is they say, we can proceed and then the matter continues and then the town will say, yeah, maybe we need to continue this.

Again, in my experience if it is a true situation where the parties just have not had enough time to review material that generally becomes apparent because everyone’s got the same objection and the same concern. Like, hey, I just got this material this morning. My expert needs to review it. I didn’t have time to confer with my client about it. We need more time. So those are the types of scenarios that I’ve encountered. If the town or government body says no to your request for a continuance, then you’ve got potentially an appealable issue whether or not your client’s due process rights were violated by not being allowed more time..

CLARICE: And so one of your last examples that you said, the idea of the town or the municipal, whatever the active body is, saying, no, we’re not going to continue it and then taking a step further and changing their mind, how do you know when it’s appropriate to appeal? Is it something — is that like a personal judgment call when to wait to see if the town changes their mind?

[0:09:12] MARISA: You know what I’m going to say, right?

CLARICE: Yeah. Our favorite answer in the world.

MARISA: It depends.

CLARICE: So that’s always something that you kind of have to – maybe take a gamble feels like too strong a phrase.

MARISA: Well, appeal rights are a completely different issue and we could podcast about that separately.

CLARICE: Tune in next week.

MARISA: But it really does depend on the statute, where in the process you are. You generally can only – I’ll just say this and move on. But you generally can only appeal final decisions of an agency or a government entity. To file an appeal of anything before a final decision is considered something called interlocutory which just means you’re not at the end stage [inaudible].

CLARICE: You’re not ready yet.


CLARICE: Yeah. So leaving the appeals issue, what are other things that we need to know about due process and in moving forward kind of dealing in a municipality setting?

MARISA: The case law on due process I find fascinating because in the context of a municipal setting the courts have said in Rhode Island that the sort of bright line rule is that the parties have to be provided with enough time for them to engage in meaningful conversation, in meaningful discourse. And it’s that term meaningful – when I say bright line, that’s the standard, but what does meaningful mean. That is determined on a case-by-case basis by the courts and there’s no magic words that you put on the record to convince a judge on appeal that meaningful conversation was not had or could not be had.

And, again, it’s very fact specific. You have to look at the timing. What time was the meeting, for example. What time was the city council meeting. What time did materials for that meeting become available such that members of the public could review them. The shorter amount of time, obviously the meaningful factor starts to diminish. If you’ve had the materials for six months, you’re probably not going to within that appeal.

[0:12:12] CLARICE: It feels like meaningful – enough time to have a meaningful conversation. It sounds very much couples therapist. Like what determines a meaningful conversation. It starts to get a little – like a nebulous concept of, you know, it’s kind of in whoever – the decision is in whoever the judge is on that case.

MARISA: Now, why did you go to the couples counseling example?

CLARICE: Because I work in communications and the idea of a meaningful conversation often goes to like a therapist or [inaudible].

MARISA: You were very specific. You said couples counseling.

CLARICE: Because I also – so, all right. We’re pulling back on this one. I, folks, no longer work at the firm. I work at a mediation firm and I just had a wonderful conversation with one of my coworkers who works in our divorce and family division, so I think I still have some of our conversation on the brain and couples counselors are a big part of that. I feel like this was a bad time to drop a bomb on everybody.

MARISA: Why not.

CLARICE: I still love you all. I’m still podcasting.

MARISA: Technically you do still work for the firm.

CLARICE: Oh, that makes me happy.

MARISA: Not full-time, but, yeah. And congratulations, by the way.

CLARICE: Thanks.

MARISA: So, yeah. That’s due process in terms of a very specific municipal example. And, again, it can be extrapolated out over other entities. I just happened to have an experience with it this past week.

CLARICE: The municipal level was definitely the theme of the week for everybody.


CLARICE: All right. So I did manage as promised, the name of the sweater company is SeaWell.

MARISA: S-e-a?

CLARICE: S-e-a-w-e-l-l. And they have both gender sweaters. Both are very cute and they’re made out of oyster shells. I thought that was really cool.

MARISA: That’s great.

CLARICE: I mean, you get to have a great dinner and then wear it later. What could go wrong. It’s a great idea.

MARISA: Thanks, Clarice.

CLARICE: Thanks. And as always if you guys have any questions, topics you want to hear about, things you just want to put on our radar, you can hit us up at Help@DesautelESQ.com. Reach out to us on Instagram and have a good week. Happy shopping, everybody. Get your dinner shirts.

MARISA: See ya.

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