the “essential elements [of due process] are ‘notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.’ ”
How later courts described this case
- the “essential elements [of due process] are ‘notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.’ ”
- plurality opinion as to other issues and outcome of the case
- “[t]he essential elements of due process are notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before the tribunal having jurisdiction of the cause.”
- involving dismissal from the police force
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
concurring.
I agree that the record supports the dismissal of appellant, but I do not join the opinion of Mr. Justice Nix or his opinion’s mandate. The opinion’s assertion that the disciplinary procedure used by the Pennsylvania State Police is “inherently defective” as a matter of constitutional due process and its suggestion that the procedure should be “redesigned” not only misperceive the nature of the disciplinary procedure challenged on this appeal but, if followed, would also unnecessarily and unwisely impair the proper administrative function of the Commissioner of Pennsylvania State Police. Moreover, the alternative procedures suggested by the opinion to remedy this speculative “defect” could well harm the very due process interests which they are supposed to protect.
The procedure challenged by appellant is the routine practice within the Pennsylvania State Police of forwarding to the Commissioner information that relates to preliminary investigations into police conduct, as these investigations take place. In appellant’s view, the Commissioner cannot impartially review the recommendation of the Court-martial Board in a particular trooper’s case if the Commissioner has previously received copies of preliminary investigations into the trooper’s conduct.
Contrary to the view of appellant, the Commissioner’s mere receipt of copies of preliminary investigations at some *205 time prior to the court-martial hearing does not constitute “a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the state and the accused [, which] denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 (1927). Compare Dussia v. Barger, 466 Pa. 152 , 351 A.2d 667 (1975) (Commissioner’s decision to institute a prosecution incompatible with Commissioner’s impartial review of same). In reviewing the recommendations of the Court-martial Board, the Commissioner is statutorily obliged to review the “reports of findings of the Court-martial Board” and “all records of the trial.” 71 P.S. § 251(b)(2) (Supp. 1982-83). There is no authority for the Commissioner to base his decision on information outside the record. Nor is there any basis for speculation that the Commissioner in this or in any other case would disregard his statutory obligation and rely on preliminary investigative reports not incorporated into the record.
If, pursuant to the suggestion made by the opinion of Mr. Justice Nix, the Pennsylvania State Police were to “exclude [preliminary investigations] from the Commissioner prior to the exercise of his discretion as to the Board’s recommendation,” all reports of all preliminary investigations would have to be kept from the Commissioner’s view, for there is, of course, no way of knowing in the preliminary stages of an investigation whether a court-martial, or any other form of discipline, will follow. Thus, for the sake of correcting a speculative harm in those few cases which will result in court-martial proceedings, the opinion of Mr. Justice Nix would require the Commissioner to ignore reports of all disciplinary concerns as they arise, thus substantially impairing the Commissioner’s essential authority as “the head and executive officer of the Pennsylvania State Police.” 71 P.S. § 251(a). With an incomplete awareness of the disciplinary problems in the force under his command, the Commissioner of Pennsylvania State Police would be unable to carry out effectively his statutory duties to “make rules and regulations, subject to the approval of the Governor, prescribing *206 qualifications prerequisite to, or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force; for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation of the State Police Force.” 71 P.S. § 251(a).
The alternative suggestion of the opinion of Mr. Justice Nix creates the very due process problem that it purports to solve. By suggesting that the Pennsylvania State Police should “make any information received by this [preliminary investigation] process a part of the record so that the charged trooper as well as a reviewing tribunal will be aware of it,” the opinion would implicitly allow the Commissioner to rely upon information beyond that which he is statutorily authorized to consider. Although the charged trooper would be “aware” of the information once the Commissioner had placed it on the record, he would have no opportunity to respond through the examination and cross-examination of witnesses, as he is able to respond to all issues raised at the court-martial hearing. Without the support of an adequate record, this information, which otherwise should never have been considered, would be of little, if any, use to a complaining trooper on appeal, where the reviewing court would be obliged to sustain the Commissioner’s decision if there is substantial evidence of the appellant’s guilt beyond a reasonable doubt. See Graci v. Pennsylvania State Police, 14 Pa.Cmwlth. 630 , 324 A.2d 887 (1974);. Luchansky v. Barger, 14 Pa.Cmwlth. 26 , 321 A.2d 376 (1974).
As no constitutional infirmity in the procedures employed by the Pennsylvania State Police has been established, there is no reason to fashion the gratuitous “remedy” suggested by the opinion of Mr. Justice Nix. There is every reason not to impose a “remedial” directive whose procedures will serve *207 only to create new and unnecessary problems. The order of the Commonwealth Court must be affirmed.
O’BRIEN, C.J., and HUTCHINSON, J., join in this opinion.