Procedural Due Process

Question 1

What are the two due processes clauses?

Answer 1

5th Amendment - applies to federal government

14th Amendment - applies to states and localities.

Question 2

What are the two questions and rights related to procedural due process?

Answer 2

1. Is life, liberty, or property being taken?
2. If yes, what process is due?

Right to notice and hearing.

Question 3

What is a loss of life, liberty, or property?

Answer 3

Life - death penalty

Liberty - incarceration, physical injury.
- Not damage to reputation.

Property

• Interest in your government job or benefit whenever you have a legitimate entitlement.
• Mere expectation of employment is not enough.
• Government must say its an entitlement.

Note: negligence is not enough, must be intentional.

Question 4

If there is a loss to life, liberty, or property, what process is due?

Answer 4

Courts balance three factors

1. The interest at stake
2. The value of protecting interest
3. The government’s interest in efficiency and cost.

Timing of hearings

• Before deprivation: welfare benefits, drivers license revocation.
• After deprivation: must be prompt and fair, ex. disability benefit termination, suspension from school.

Question 5

What is the rule for public employees who can only be fired for-cause?

Answer 5

Must be given opportunity to be heard prior to discharge, unless significant reason not to keep employee on job.