Coleman

The abstract words of the due process clause of the United States Constitution have engendered many controversies; but it is beyond dispute that the government may not deprive an individual of life, liberty, or property without notice and opportunity to respond, in a manner “appropriate to the nature of the case.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [ 94 L.Ed. 865 , 872-873, 70 S.Ct. 652 ].)

The due process issue we address here is what procedural safeguards, if any, the state must afford a permanent civil service employee when it exercises its statutory authority to treat the employee’s unexcused absence from state employment for five consecutive working days as an “automatic resignation.” The statutory authority in question is provided by subdivision (a) of Government Code 1 section 19996.2 (hereafter section 19996.2(a) or the AWOL statute). 2 Although the AWOL statute entitles an employee who has been determined to have resigned to seek reinstatement, and to obtain a hearing on the request for reinstatement, it does not entitle the employee to any notice or opportunity to respond before the state’s determination of resignation, nor does it…

I concur in the majority opinion’s conclusion that Government Code section 19996.2, subdivision (a)—the state employee absent-without-leave (hereafter AWOL) provision—violates procedural due process insofar as it authorizes the state to “automatically” terminate the employment of a permanent employee who the employer believes has been absent without leave for five consecutive days, without first notifying the employee or giving him or her the opportunity to respond to the allegations of unauthorized absence.

I cannot agree, however, with the opinion’s further conclusion that “[o]nce the state has provided notice and an opportunity to respond, neither the federal nor the state Constitution requires anything more.” (See maj. opn., ante, p. 1123.) In particular, I disagree with the opinion’s conclusion that neither the federal nor the state Constitution requires the state to provide any form of posttermination hearing at which the state employer bears the burden of proving that the permanent employee was in fact absent without leave for five consecutive days and thus was properly subject to termination under the AWOL statute.

*1127 In reaching the conclusion that no posttermination…

I concur in the majority holding that due process is not offended by enabling the state conclusively to deem an unauthorized five-day absence to be an employee-initiated severance of employment. I must respectfully dissent, however, from the conclusion that either the federal or state Constitution requires individualized notice and an opportunity for the resigned employee to respond prior to invocation of Government Code section 19996.2, subdivision (a). 1 I am unconvinced, as was the Court of Appeal below, that these requirements *1137 will significantly reduce the possibility of an erroneous application of the statute.

“ ‘What is due process depends on circumstances. It varies with the subject matter and the necessities of the situation. [Citation.] Its content is a function of many variables, including the nature of the right affected . . . and the availability of prompt remedial measures.’ ” (Thorn v. Superior Court (1970) 1 Cal.3d 666, 673 [ 83 Cal.Rptr. 600 , 464 P.2d 56 ]; see Morrissey v. Brewer (1972) 408 U.S. 471, 481 [ 33 L.Ed.2d 484, 494 , 92 S.Ct. 2593 ].) In my view, the statutory scheme, including existing administrative grievance and review procedures, adequately…

(1) The abstract words of the due process clause of the United States Constitution have engendered many controversies; but it is beyond dispute that the government may not deprive an individual of life, liberty, or property without notice and opportunity to respond, in a manner "appropriate to the nature of the case." ( Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 313 [ 94 L.Ed. 865 , 872-873, 70 S.Ct. 652 ].)

The due process issue we address here is what procedural safeguards, if any, the state must afford a permanent civil service employee when it exercises its statutory authority to treat the employee's unexcused absence from state employment for five consecutive working days as an "automatic resignation." The statutory authority in question is provided by subdivision (a) of Government Code [1] section 19996.2 (hereafter section 19996.2(a) or the AWOL statute). [2] Although the AWOL statute entitles an employee who has been determined to have resigned to seek reinstatement, and to obtain a hearing on the request for reinstatement, it does not entitle the employee to any notice or opportunity to respond before the state's determination of…