5. Due Process

Question 1

What is the doctrine of selective incorporation?

Answer 1

It applies specific provisions of the Bill of Rights to the states.

1. First Amendment
2. Second Amendment
3. Fourth Amendment
4. Fifth Amendment
5. Sixth Amendment
6. Eighth Amendment

Question 2

Which major rights are not incorporated to the states?

Answer 2

1. Fifth Amendment right to a grand jury
2. Seventh Amendment right to a jury trial in civil cases

Question 3

What do the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect?

Answer 3

The rights of ‘persons,’ not merely ‘citizens.’

Question 4

Who is considered a ‘person’ under the Due Process and Equal Protection Clauses?

Answer 4

• Corporations
• Aliens

Question 5

What does the Fifth Amendment Due Process Clause guarantee?

Answer 5

Fundamental fairness in the administration of federal laws.

Question 6

What must a plaintiff demonstrate when challenging deprivation of a constitutionally-protected right?

Answer 6

That she has a constitutionally-protected right.

Question 7

What do the Fifth and Fourteenth Amendments protect against?

Answer 7

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).

Question 8

What constitutes an invasion of a liberty interest?

Answer 8

1. Freedom from bodily restraints
2. Physical punishment
3. Commitment to a mental institution

Question 9

What does NOT constitute an invasion of a liberty interest?

Answer 9

1. Injury to reputation
2. Forced administration of medicine

Question 10

Under what conditions can the federal government administer antipsychotic drugs to a defendant against their will to render them competent to stand trial?

Answer 10

1. Treatment is medically appropriate
2. Does not cause substantial side effects
3. Necessary to significantly further important governmental trial-related interests

Question 11

What is a constitutionally protected property interest in public education?

Answer 11

Statutory entitlement to continued attendance at a public school.

no prior evidentiary hearing is required when a student is dismissed for academic reasons.

Question 12

What creates a property interest in continued welfare benefits?

Answer 12

Statutory entitlement.

Question 13

What conditions allow for the revocation of a driver’s license without a pre-termination hearing?

Answer 13

1. Special provisions for hardship cases
2. Low risk of erroneous deprivation was not great
3. the regulation promoted the public interests in
   administrative efficiency, highway and traffic safety, and the prompt removal of a safety hazard.

Question 14

What establishes a property interest in public employment?

Answer 14

• Employment under a tenure system
• Clear understanding of termination only for ‘cause’

Question 15

When is there no property interest in continued Employment?

Answer 15

-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.

Question 16

What violates procedural due process regarding prejudgment garnishment?

Answer 16

Prejudgment attachment or garnishment of wages without notice or hearing.

Question 17

Does a due process property interest arise when applying for employment?

Answer 17

No, it does not arise at that stage.

Question 18

What satisfies due process in property forfeiture notifications?

Answer 18

Sending a certified letter to notify interested parties.

Question 19

What does the First Amendment require for licensing schemes for adult businesses?

Answer 19

Prompt judicial determination of claims against unconstitutional license denial.

Question 20

What type of deprivation does capital punishment represent?

Answer 20

A deprivation of a life interest.

Question 21

What factors determine the process required for deprivation of life, liberty, or property?

Answer 21

• Private interest affected
• Risk of erroneous deprivation
• Government’s interest in streamlined procedures

Question 22

What does due process require regarding the bias of judges?

Answer 22

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.

Question 23

What recent Supreme Court ruling relates to irrebuttable presumptions?

Answer 23

They violate procedural due process.

Question 24

What does substantive due process ensure?

Answer 24

Fairness under fundamental rights of personhood.

Question 25

What is the standard for economic regulation laws?

Answer 25

They must be rationally related to a legitimate government interest.

Question 26

What test is applied when the government infringes on a fundamental right of personhood?

Answer 26

Strict scrutiny test.

Question 27

What are some categories that fall under fundamental rights of personhood?

Answer 27

• Contraceptives
• Marriage
• Protests
• Family relations
• Sexual orientation
• Right to travel
• Right to vote
• Medical records

Question 28

Is the right to die considered a fundamental right?

Answer 28

No, it is not presently a fundamental right.

Question 29

What liberty interest does a person have regarding unwanted medical treatment?

Answer 29

Not being forced to undergo unwanted medical procedures.

Question 30

What is the state’s countervailing interest in preserving life?

Answer 30

Preserving life itself.

Question 31

What does the Takings Clause of the Fifth Amendment prohibit?

Answer 31

Taking private property for public use without just compensation.

Question 32

What encompasses the scope of a governmental taking?

Answer 32

1. Physical appropriations of property
2. Governmental actions significantly damaging property or impairs the use.

Question 33

What are the four ways property can be taken by the government?

Answer 33

1. Direct government appropriation
2. Regulatory taking
3. Temporary restrictions
4. Conditional permits

Question 34

What happens when the state validly regulates property under its police power?

Answer 34

Payment of just compensation is NOT required, even if the owner’s use of his property, or its value, has been substantially diminished.

Question 35

What constitutes a regulatory taking?

Answer 35

Any permanent, physical invasion of property.

Question 36

Government-imposed conditions on the development of property constitute a taking UNLESS…..

Answer 36

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.

Question 37

What is inverse condemnation?

Answer 37

A land-use regulation that denies all reasonable, economically beneficial uses of land.

Question 38

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:

Answer 38

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.

Question 39

Use restrictions will constitute a taking if…

Answer 39

there is a denial of all economic value of land because such a regulation is equivalent to a physical appropriation.

Question 40

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….

Answer 40

an economically viable use for the property remains.

Question 41

What determines if a temporary restriction is considered a taking?

Answer 41

Dimensions of a property interest and term of years.

Question 42

A temporary restriction causing a diminution in value is NOT a taking of the parcel as a whole, because the property:

Answer 42

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.

Question 43

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:

Answer 43

(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.

Question 44

City taking private property and transferring it to a private developer

How has the Supreme Court interpreted ‘public use’ in the Takings Clause?

Answer 44

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.