16. Procedural Due Process (5A/14A)

Question 1

What is required for procedural due process?

Answer 1

1) Intentional (NOT negligent)
2) Deprivation of life/liberty/property
3) Fair procedure
4) Notice + Hearing
5) Unbiased decision maker

Question 2

What type of deprivation is required?

Answer 2

Intentional (NOT negligent)

Question 3

What must the individual be deprived of?

Answer 3

Life

Liberty (NOT specifically defined)

• Freedom of action (NOT of physical restraints)
• Statutory/Constitutional freedom

Property

• Tangibles
• Intangibles (licence/welfare benefits/school attendance)
• Government employment (for good cause/tenure)
• Legitimate claim to benefits (by law/NOT mere expectation)

Question 4

What factors determine a fair procedure?

Answer 4

(Mathews v Eldridge)

1) Importance of interest to Individual
- Reasonable expectation of receiving continued benefit

2) Value of procedural safeguards towards protecting interest
3) Government’s interest in fiscal and administrative efficiency

Question 5

What is required for notice and hearing?

Answer 5

1) Notice
- Subject matter
- Reasons for action
- Date, time, place of hearing
- Right to counsel + present evidence + cross-examine Ws

2) Hearing
Before deprivation
After deprivation
- Driving licence suspension (breathalyser test)
- Government employment (for good cause)
- Personal property (NOT real property)

Question 6

What is required for the decision maker?

Answer 6

Unbiased

Reasonable decision

• As reasonable person would make
• Substantial evidence

Question 7

What is required for waiver of procedural due process rights?

Answer 7

1) Voluntary

2) Knowingly