Procedural Due Process

Question 1

What does procedural due process guarantee?

Answer 1

Right of fair process when federal/state govt deprives person of life, liberty, property.

Question 2

What rights are covered by procedural due process (i.e. what counts as life, liberty, property)?

Answer 2

Liberty: physical freedom - free from imprisonment, right to K, engage in gainful employment)
Test: liberty deprivation if (a) loses significant freedom of action or (b) denied freedom provided by Const. or statute
Note: NOT defamation

Property: personal property, real property, govt benefits to which you are entitled (i.e. have a reasonable expectation of continued receipt)
– Note: protects entitlement NOT right (vs. privilege)

Question 3

What process does due process require?

Answer 3

(1) notice (2) opportunity to be heard (3) neutral decision-maker

Question 4

When does a hearing satisfy the opportunity to be heard prong of due process?

Answer 4

balancing test weigh:

• importance of interest to the individual
• value of specific procedural safeguards - i.e. risk of error of current ones/how much new ones would help
• government interest in fiscal and administrative efficiency - i.e., burden of additional process

Note: typically a pre-deprivation hearing is req’d unless impracticable