Pg 26

Question 1

What is the rationale behind the procedural due process clause?

Answer 1

To avoid arbitrariness and ensure accuracy in government decision making.

Question 2

What is required when a welfare benefit is going to be discontinued?

Answer 2

A pre-termination hearing. That is where the government’s desire to protect public money is weighed against the person’s needed to not be wrongfully deprived of assistance. The hearing must be at a meaningful time and manner, the person must have an opportunity to confront and cross-examine adverse witnesses, and any evidence used by the government to prove its case must be disclosed to the individual so that he can show it is untrue.

The idea is that terminating aid can deprive someone of the very means to live, which can make a situation desperate

Question 3

If an inmate is subjected to special punishment that other inmates are not, does that raise a procedural due process issue?

Answer 3

Yes, that raises an issue about the fairness of the administrative procedures used. Same is true if an inmate is challenging the conditions of his confinement. The court needs to use procedural due process to decide if someone was entitled to a hearing to determine if he could be subjected to special disciplinary proceedings in prison. Any prison regulation that restricts the rights of prisoners regarding their freedom of speech, marriage, religion, etc. is upheld if it is reasonably related to a legitimate penological interest like security or rehab.

Question 4

Is it possible to administer anti-psychosis drugs to prison inmates without their permission under procedural due process?

Answer 4

Yes if the inmate was dangerous to himself or others and the treatment was in his medical interest. The decision must be made with fundamentally fair process, which requires a consideration of the importance of the interest that is being impaired, the importance of avoiding erroneous decisions, and the government’s interest in the process

Question 5

Is it possible for a court to order that drugs be given to someone to make them mentally competent to stand trial?

Answer 5

Yes, in limited circumstances. The court must examine these four factors:
– the importance of the government interest at stake
– the medication will significantly further an important state interest and would be likely to make the defendant competent
– the medication is necessary to further this interest
– administration of the medication is medically appropriate and in the patient’s best medical interests

Question 6

If an interest that is at stake is best decided by a non-governmental unit, like a teaching board or medical school administrator, what will happen under procedural due process?

Answer 6

The court will show respect for that non-governmental unit’s judgement and it won’t be overridden unless it was such a departure from accepted norms that it is obvious the unit did not exercise professional judgement

Question 7

How do you approach a procedural due process issue on an essay?

Answer 7

There are four requirements for procedural due process:
– intentional deprivation of a life, liberty, or property interest by the government
- sufficient notice
– opportunity to be heard
– by a neutral decision maker that is not biased

Question 8

What is considered to be a property interest under the procedural due process clause?

Answer 8

There must be a reasonable expectation of a continuation of an interest. This can include a driver’s license, welfare benefits, continued tenure employment. There must be an entitlement that is distinct from a mere expectancy

Question 9

What are some examples of things that a person would have a property interest in, and thus that the government could not deprive a person of under procedural due process?

Answer 9

The government cannot just take your house, guns, horse, dog, stocks, patents, trademarks because that is a deprivation of a property interest

Question 10

What is an entitlement under procedural due process?

Answer 10

A property interest such as a driver’s license or a government job with tenure

Question 11

What is considered to be property under procedural due process?

Answer 11

Expectation of a continued benefit such as Social Security or a driver’s license

Question 12

What is the key to determining if a person has an expectation of the continuance of an existing benefit as a property interest under procedural due process?

Answer 12

They must have a reasonable expectation

Question 13

Does a person have a property interest in something that will be a future right under procedural due process?

Answer 13

No, procedural due process only applies to present rights or interests

Question 14

When does a person have a property interest in employment under procedural due process?

Answer 14

When he has tenured employment in a tenure system, or if there’s a clear understanding that the person will only be terminated for cause.

Fixed term and at will contracts have no property interest beyond their terms. You’re only entitled to employment that is not “at will“ so the government does not have to give notice or opportunity to be heard for at will employment terminations

Question 15

Can you have a property interest in continuation of public welfare benefits or mandatory schooling under procedural due process?

Answer 15

Yes

Question 16

What is the difference between a property interest and a liberty interest under procedural due process?

Answer 16

– Property: you have to have a reasonable expectation of the continuation of a physical interest
– liberty: this is freedom from bodily restraint or a right to physically do something

Question 17

What is a liberty interest under procedural due process?

Answer 17

Freedom from bodily restraint and the right of an individual to contract, engage in common occupation of life, acquire useful knowledge, marry, establish a home, reputation, voluntary commitment, freedom from defamation, bring up kids, worship God, and enjoy privileges essential to the pursuit of happiness. Liberty allows adults to decide how to conduct their private lives regarding sex.

Question 18

If a person is already incarcerated but the government further reduces their liberty through some atypical or significant hardship beyond normal prison life, would that be deprivation of a liberty interest under procedural due process?

Answer 18

Yes. It’s permissible for the government to keep visitors away from the plaintiff, to transfer him to a different jail, to put him in general population instead of isolation, and to take away recreation or TV. But if he is put in isolation with only bread and water, that is probably deprivation of a liberty interest

Question 19

If parole or probation is being revoked, must due process be given?

Answer 19

Yes

Question 20

What are some personal liberties that the government cannot infringe on under procedural due process?

Answer 20

Marriage, use of contraception, procreation, family, relationships, child rearing, education, abortion before viability, homosexual consensual conduct, refusing unwanted medical treatment, sexual relationships in private spaces, etc.

Question 21

If you are an unfit parent and the government takes your children, did you have a life liberty interest that you were deprived of under procedural due process?

Answer 21

No. You do have a liberty interest in parenting, but if the government follows the right processes, your children can be taken away.

Question 22

What is the balance test that is applied to liberty interest under procedural due process?

Answer 22

The court balances a plaintiff’s liberty interest against the relevant state interests to determine if rights have been violated.