Procedural Due Process

Question 1

DPC of 5th A and DPC of 14th A provide that a person has a right to

Answer 1

a fair process when the gov’t deprives the person of life, liberty, or property

Question 2

DPC of 5th A applies to

Answer 2

federal government

Question 3

DPC of 14th A applies to

Answer 3

state government

Question 4

When someone brings a 5th A or 14th A claim, they are claiming that

Answer 4

Govt’s intentional or reckless action caused a loss of life, liberty, and property

Question 5

List (2)

A deprivation of liberty occurs if a person:

Answer 5

1. Loses significant freedom of action OR
2. Is denied a freedom provided by the constitution or a statute

Question 6

Is injury to reputation (aka gov’t defames you) a deprivation of liberty or property

Answer 6

NOPE, no deprivation if govt defames you

Question 7

list (3)

A deprivation of property occurs if:

Answer 7

1. loss of personal property
2. loss of real property -OR-
3. gov’t benefits from a taking to which there is an entitlement of compensation for the loss

Question 8

List (3)

Procedural due process requires

Answer 8

1. Notice
2. Hearing (aka opportunity to be heard) - AND -
3. Neutral decision-maker

Question 9

The type and extent of the hearing are determined by what type of test

Answer 9

a balancing test

Question 10

The type and extent of the hearing are determined by a balancing test that balances:

Answer 10

1. Importance of interest to the individual -AND-
2. Value of specific procedural safeguards to that interest against
3. Govt interest in fiscal and administrative efficacy (aka burden on gov’t from using add’l procedures)

Question 11

typically a claimant should be given a ______________ unless that would be ___________

Answer 11

pre-deprivation hearing; impracticable

Question 12

Question 13

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:

Answer 13

a legitimate claim or entitlement to the benefit based on state or federal law or policy

Question 14

An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker. Whether an individual is entitled to notice, a hearing, or some other fairness consideration depends on the circumstances of the particular deprivation.

What is NOT a factor a court will consider in determining the type of procedural due process that is required?

Answer 14

The opportunity for the individual to be represented by counsel is not something the courts consider in determining what type of procedure is required.

Question 15

what process is required for public employment

Answer 15

prior notice with opportunity to respond and subsequent evidentiary hearing

Question 16

what process is required for public education

Answer 16

prior notice and opportunity to respond

evidentiary hearing not required

Question 17

what process is required for driver’s license suspension

Answer 17

prior evidentiary hearing

EXCEPTION: breathalyzer test suspension statutes

Question 18

what process is required for termination of parent’s custody rights

Answer 18

prior notice and prior evidentiary hearing.

Clear and convincing evidence required

Question 19

what process is required for civil forfeitures

Answer 19

1. Real property - prior notice and prior evidentiary hearing
2. Personal property - subsequent notice and subsequent evidentiary hearing

Question 20

what process is required for detention of citizen enemy combatants

Answer 20

subsequent notice and meaningful opportunity to contest the factual basis for detention before a neutral decision maker

Question 21

what process is required for commitment to a mental institution

Answer 21

1. Adults - prior notice and prior evidentiary hearing
2. Children - prior screening by a neutral fact finder

Question 22

what process is required for welfare benefits

Answer 22

prior notice and prior evidentiary hearing

Question 23

what process is required for disability benefits

Answer 23

prior notice with opportunity to respond and subsequent evidentiary hearing