DUE PROCESS Flashcards
Procedural Due Process
A fair process (e.g. notice, hearings) is required for a govt agency to take or deprive a person’s life, liberty or property
Analysis:
1) Has there been a deprivation of life, liberty or property?
» Liberty Deprivation–Loss of a significant freedom of
action or freedom provided by Const. or statute (e.g.
institutionalization, govt restriction of fundamental rights)
» Property Deprivation–A legitimate claim or entitlement
to a benefit under law, which goes unfulfilled and have
reasonable expectation to continue receipt
2) What procedures are required? Determined by balancing:
a) Importance of the individual interest involved; AND
b) Value of procedural safeguards to that interest, against
c) Govt interest (i.e. fiscal or administrative efficiency)
Examples: Procedural Due Process Requirements arise with:
* Terminating welfare/social security benefits; separating child from parents; punitive damages awards; enemy combatant status for citizens obtain in foreign countries
Govt negligence is insufficient, it needs to be intentional or reckless conduct
EXCEPTION: Govt is liable in emergency situations where the conduct “shocks the conscience”
Govt has no duty to protect from private harms, unless:
1) Govt creates a danger OR
2) Person is in custody
Substantive Due Process
Involves the determination of whether govt has adequate reasons for depriving life, liberty or property
* Encompasses both fundamental and non-fundamental rights
Applicable levels of scrutiny
- Non-Fundamental Rights–Rational Basis
- Fundamental Rights–Strict Scrutiny
Substantive DP vs. Equal Protection Clause (EP)
* Similarities–Under both substantive DP and EP, a court reviews the substance of the law, not procedures
* Differences
» Substantive DP–Usually involves laws affecting rights of
all persons to engage in some conduct or activity
» EP–Usually involves laws treating certain people or
classes of people differently than others, usually based on some trait
Economic Rights
A rational basis test is used for economic rights, unless the infringement falls under the Contracts Clause or Takings Clause. The Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights)
Contracts Clause
States cannot impair contractual duties. Applies only to state/local interference with existing contractual obligations, including govt. obligations
Levels of Scrutiny–Different for private vs. public K’s
> > Private K’s–Require intermediate-type scrutiny. If a law substantially impairs a party’s rights under an existing K, if it violates the K Clause unless the law:
1) Serves an important legitimate public interest; and
2) Is reasonable and narrowly tailored in promoting that interest
> > Govt. K’s–Require stricter scrutiny. Local laws substantially impairing or interfering with existing govt. K’s must be reasonable and necessary to serve an important public purpose
Ex Post Facto Clause
The Const. prohibits state and federal govts from passing retroactive laws, including ex post facto laws.
The Ex Post Facto Clause prohibits ex post facto laws. A law is an ex post facto law if it either:
a) Criminally punishes conduct that was lawful when done, or
b) Increases punishment for a crime after it has been committed, or
c) Reduces the burden required to convict a person for a crime after it has been committed
It does not apply to civil liability, where retroactive legislation must only meet rational basis.
Bill of Attainder
The Const. prohibits state and federal govts from passing retroactive laws, including bills of attainder.
A Bill of Attainder is a legislative act that punishes specific individuals without a judicial trial.
* E.g. An order to imprison a person without judicial process
Takings Clause
The 5th A Takings Clause prohibits govt from taking private property for public use without providing just compensation to the owner and/or occupant
There is a 3-party analysis to determine if a taking is constitutional:
1) Has there been taking?
» Possessory Taking–Govt confiscation or physical
occupation of a property. The amount of property taken is
irrelevant
> > Regulatory Taking–Govt regulation that leaves no
economically viable use for a property; factors in
determining if a regulatory taking has occurred include:
a) Social good promoted by the regulation
b) Loss to owner
c) Owner’s expectations for his property
2) Is the taking for public use?
A taking is for public use if govt acts with reasonable belief that the taking will benefit the public (very low standard)
3) Is just compensation paid?
Compensation is measured in terms of loss to the owner and the reasonable market value. The benefit/worth to the govt is irrelevant.
Notes:
* A decrease in value is not a taking, balance factors such as: (1) economic impact and (2) investment-backed expectations
- Govt conditions of development of property must be justified by roughly property benefit to burden or else it will be considered a taking
- Temporary denial of use is not a taking if govt acts reasonably
Procedural Due Process Quick Recap
A. Need a deprivation of life, liberty (loss of freedom) or property (entitlement not fulfilled)
B. Need intentional government action (government negligence is not enough)
C. Government has no duty to protect people from private harm
D. Procedures required: Balance
1. Importance of interest to individual
2. Ability of additional procedures to increase accuracy of fact-finding
3. Government interest in admin efficiency (government cost)
E. Known examples:
1. Need notice and hearing before welfare benefits can be terminated
2. Only need post termination hearing to take away soc sec benefits
3. Student discipline in public school: Need notice of charges and opportunity to explain
4. Need notice and hearing before parents custody is permanent terminated
5. Punitive damage awards: Need jury instr and jud review
6. Need notice and hearing for prejudgment attachment and government seizure of assets, except in exigent circumstances
Substantive Due Process Quick Recap
A. Ask: Is there adequate reason for government’s taking of life, liberty or property?
B. Liberty deprivation: Economic liberties: Rational basis
C. Property deprivation: 5th amendment takings clause: Government can take property for public use, but must pay just compensation
1. Taking = possessory taking or regulatory taking (government regulation leaves property economically unviable)
2. If a taking, must be for public use: Must be reasonable belief that action will benefit public
a) If no: Government must return property
b) If yes: Government must pay just compensation (measured by loss to owner)
D. Contracts clause: State (n/a federal government) can’t impair the obligations of existing contracts
1. Interference with private contracts: Intermediate scrutiny: Law must be reasonably and narrowly tailored to an important and legitimate public interest
2. Interference with government contracts is strict scrutiny, though got state/local government to get out of their contracts
E. Privacy (fundamental right protected under subst due process (DP))
1. Strict scrutiny for all below:
a) Right to marry
b) Right to procreate
c) Right to custody of children
(1) State can create irrebuttable presumption that married woman’s husband is the father of her child
2. Right to keep family together (must be related to one another)
3. Right to control upbringing of kids (grandparents can’t have visitation of parents objection)
4. Right to purchase and use contraceptives
F. Right to abortion (special test)
1. Before viability: States can’t prohibit. Can regulate if it doesn’t create undue burden:
a) Example: 24 waiting period, required to be done by licensed doctor.
b) No example: Prohibition on partial birth abortions
2. After viability: States can prohibit, unless abortion is needed to protect woman’s life/health.
3. Hints:
a) No government duty to subsidize abortions
b) Spousal consent requirement is unconstitutional
c) Unmarried minors may be required to get parental notice/consent, as long as there is alternate judge procedure
G. Right to refuse medical treatment (rational basis)
1. State may require clear and convincing evidence that person wanted treatment terminates
2. State can prevent family members from terminating treatment
H. No right to physician assisted suicide (rational basis)
I. Government can prohibit homosexual activity (rational basis)
J. Right to education (rational basis)
