Procedural Due Process Flashcards
What qualifies as “property” under PDP?
Anything that P has a legal entitlement to, under state or federal law. Anything for which P has an expectation of continued receipt based on legal entitlement.
T/F: To commit an adult to a mental institution, there must be prior notice and prior evidentiary hearing.
True, except in an emergency
To commit a child to a mental institution, there must be prior ________?
Screening by a neutral factfinder (NOT a parent).
T/F: To deprive someone of welfare benefits, there must be prior notice and prior evidentiary hearing.
True.
T/F: To deprive someone of disability benefits, there must be prior notice, prior opportunity to respond, and prior evidentiary hearing.
False. Prior notice and opportunity to respond are required to deprive someone of disability benefits, but the hearing can be subsequent to the deprivation.
T/F: To deprive someone of public employment, there must be prior notice, opportunity to respond, and prior evidentiary hearing.
False. Prior notice and opportunity to respond are required to deprive someone of public employment, but the hearing can be subsequent to the deprivation.
What is the Taking Clause? (in brief)
A government may take private property for public use but must provide the owner with just compensation, determined by the property’s fair market value at the time of taking.
What is public use for the purposes of government taking?
Anything that is rationally related to a legitimate public purpose, anything the government legitimately believes is for the public benefit. Liberally construed.
Where in the Constitution is the Taking Clause contained? Why does it apply to states?
5th Amendment. Applies to states through 14th Amendment.
When does government regulation count as a regulatory taking?
When the regulation (such as zoning) leaves the property with no economically viable use.
T/F: temporary denials of all economic use of private property can never be a regulatory taking.
False. Temporary denials of economic use can be regulatory taking, depending on the length of time/actual effect of the denial.
What are the factors a court will consider when evaluating if regulation leaves a property with no viable economic use?
1) nature of government interest
2) diminution in value suffered by owner
3) effects of interference on owner’s investment backed expectations
Generally, what must a state do to satisfy procedural due process?
1) Notice
2) Hearing
3) Neutral decisionmaker
T/F: any permanent physical occupation by the government of private property counts as a taking and just compensation must be provided.
True.
T/F: physical invasion or intrusion of property is necessary for an action to count as a taking under the 5th Amendment. Why?
False. Physical invasion/intrusion of property is sufficient, but not necessary. A taking may be regulatory in nature, in which case no physical intrusion takes place.
