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.
What recent Supreme Court ruling relates to irrebuttable presumptions?
They violate procedural due process.
What does substantive due process ensure?
Fairness under fundamental rights of personhood.
What is the standard for economic regulation laws?
They must be rationally related to a legitimate government interest.
What test is applied when the government infringes on a fundamental right of personhood?
Strict scrutiny test.
What are some categories that fall under fundamental rights of personhood?
- Contraceptives
- Marriage
- Protests
- Family relations
- Sexual orientation
- Right to travel
- Right to vote
- Medical records
use UNDUE BURDEN TEST.
Is the right to die considered a fundamental right?
No, it is not presently a fundamental right.
What liberty interest does a person have regarding unwanted medical treatment?
Not being forced to undergo unwanted medical procedures.
What is the state’s countervailing interest in preserving life?
Preserving life itself.
What does the Takings Clause of the Fifth Amendment prohibit?
Taking private property for public use without just compensation.
What encompasses the scope of a governmental taking?
- Physical appropriations of property
- Governmental actions significantly damaging property or impairs the use.
What are the four ways property can be taken by the government?
- Direct government appropriation
- Regulatory taking
- Temporary restrictions
- Conditional permits
What happens when the state validly regulates property under its police power?
Payment of just compensation is NOT required, even if the owner’s use of his property, or its value, has been substantially diminished.
What constitutes a regulatory taking?
Any permanent, physical invasion of property.
Government-imposed conditions on the development of property constitute a taking UNLESS…..
Government-imposed conditions on the development of property constitute a taking UNLESS the conditions are rationally related to preventing harms caused by the new development.
What is inverse condemnation?
A land-use regulation that denies all reasonable, economically beneficial uses of land.
To analyze regulations that merely decrease economic value, the court may use a balancing test to determine if there is a taking. The court must balance:
To analyze regulations that merely decrease economic value, the court may use a balancing test to determine if there is a taking. The court must balance:
i.) the economic impact of the regulation on the claimant;
ii.) the extent to which the regulation has interfered with distinct Investment-backed expectations; and
iii.) the character or nature of the governmental action.
Use restrictions will constitute a taking if…
there is a denial of all economic value of land because such a regulation is equivalent to a physical appropriation.
If the Use restriction regulation merely decreases the value of the property (e.g., prohibits its most beneficial use), it will not necessarily result in a taking as long as….
an economically viable use for the property remains.
What determines if a temporary restriction is considered a taking?
Dimensions of a property interest and term of years.
A temporary restriction causing a diminution in value is NOT a taking of the parcel as a whole, because the property:
i.) will recover value when the prohibition is lifted, and, thus;
ii.) A regulation will NOT “permanently deprive” the owner of “all economic beneficial uses” of his land.
Municipalities often attempt to condition building or development permits on a landowner’s:
(i) conveying title to part, or all, of the property to the government; or
(ii) granting the public access to the property.
Such exactions constitute an uncompensated taking UNLESS:
(i) the government can show that the condition relates to a legitimate government interest (nexus); and
(ii) there is a “rough proportionality” between the size of the give-back demanded by the city and the burden on the public caused by the proposed development.
City taking private property and transferring it to a private developer
How has the Supreme Court interpreted ‘public use’ in the Takings Clause?
As ‘public purpose.’and held that a city has the power to take private property and transfer it to a private developer because of the public benefits of the proposed development.
This is NOT Explicitly permitted in the Taking Clause.
