5. Due Process Flashcards
What is the doctrine of selective incorporation?
It applies specific provisions of the Bill of Rights to the states.
- First Amendment
- Second Amendment
- Fourth Amendment
- Fifth Amendment
- Sixth Amendment
- Eighth Amendment
Which major rights are not incorporated to the states?
- Fifth Amendment right to a grand jury
- Seventh Amendment right to a jury trial in civil cases
What do the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect?
The rights of ‘persons,’ not merely ‘citizens.’
Who is considered a ‘person’ under the Due Process and Equal Protection Clauses?
- Corporations
- Aliens
What does the Fifth Amendment Due Process Clause guarantee?
Fundamental fairness in the administration of federal laws.
What must a plaintiff demonstrate when challenging deprivation of a constitutionally-protected right?
That she has a constitutionally-protected right.
What do the Fifth and Fourteenth Amendments protect against?
Deprivation of life, liberty, or property without due process of law.
Where there is a deprivation of one’s “life,” “liberty,” or “property” interests, the individual is entitled to fundamentally fair procedural safeguards (e.g., some form of notice and a meaningful hearing within a reasonable time).
What constitutes an invasion of a liberty interest?
- Freedom from bodily restraints
- Physical punishment
- Commitment to a mental institution
What does NOT constitute an invasion of a liberty interest?
- Injury to reputation
- Forced administration of medicine
Under what conditions can the federal government administer antipsychotic drugs to a defendant against their will to render them competent to stand trial?
- Treatment is medically appropriate
- Does not cause substantial side effects
- Necessary to significantly further important governmental trial-related interests
What must “property” require in order to receive procedural due process?
There must be a legitimate claim or “entitlement” to the benefit under state or federal law.
Once you determine that a person’s property interest is being impaired, you have to determine exactly what “process” the person is entitled to receive.
Proper process typically involves two requirements:
(i) notice; and
(ii) an opportunity to respond before the termination of that interest
What is a constitutionally protected property interest in public education?
Statutory entitlement to continued attendance at a public school.
no prior evidentiary hearing is required when a student is dismissed for academic reasons.
What creates a property interest in continued welfare benefits?
Statutory entitlement.
What conditions allow for the revocation of a driver’s license without a pre-termination hearing?
- Special provisions for hardship cases
- Low risk of erroneous deprivation was not great
- the regulation promoted the public interests in
administrative efficiency, highway and traffic safety, and the prompt removal of a safety hazard.
What establishes a property interest in public employment?
- Employment under a tenure system
- Clear understanding of termination only for ‘cause’
When is there no property interest in continued Employment?
-Being hired for a particular job, either public or private;
-the employee holds his position only at the “will” of the employer;
-a state refuses to renew a fixed-term contract.
What violates procedural due process regarding prejudgment garnishment?
Prejudgment attachment or garnishment of wages without notice or hearing.
Does a due process property interest arise when applying for employment?
No, it does not arise at that stage.
What satisfies due process in property forfeiture notifications?
Sending a certified letter to notify interested parties.
What does the First Amendment require for licensing schemes for adult businesses?
Prompt judicial determination of claims against unconstitutional license denial.
What type of deprivation does capital punishment represent?
A deprivation of a life interest.
What factors determine the process required for deprivation of life, liberty, or property?
- Private interest affected
- Risk of erroneous deprivation
- Government’s interest in streamlined procedures
What does due process require regarding the bias of judges?
A case must be heard by an unbiased judge.
Due process requires the recusal of a judge when the judge has a pecuniary interest in the case, such that an average judge would possibly be tempted to render an imbalanced or untrue judgment.
If one party to a case had a significant and disproportionate influence in getting the judge elected, then due process requires that the judge recuse himself.
There is NO presumption of bias.