Procedural Due Process Flashcards
What is the basic principle of procedural due process?
The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property. Government negligence is insufficient to state a procedural due process claim. Instead, there generally must be an intentional or reckless government action.
What is liberty?
The term “liberty” is not specifically defined in the Constitution. However, it has been held to include more than just physical freedom (for example, it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if a person:
• Loses significant freedom of action, or
• Is denied a freedom provided by the Constitution or a statute
But note: Injury to reputation itself is not a deprivation of liberty (or property).
What is property?
“Property” includes not only personal and real property (whether it’s tangible or intangible) but also government benefits to which there is an entitlement (that is, a reasonable expectation of continued receipt) under state or federal law. An abstract need or desire for (or a unilateral expectation of) a benefit is not enough.
What type of process is required?
Procedural due process requires:
• Notice
• An opportunity to be heard AND
• A neutral decisionmaker
What is notice?
The notice must be reasonably calculated to inform the person of deprivation.
What type of hearing takes place?
The type and extent of the hearing are determined by a balancing test that weighs:
• The importance of the interest to the individual and
• The value of specific procedural safeguards to that interest (that is, the risk of error from the current procedures used and the benefits of additional procedures), against
• The government interest in fiscal and administrative efficiency (that is, the burden on the government from using additional procedures)
Typically, the claimant should be given a pre-deprivation hearing, unless that would be impracticable.
What type of decision-maker is needed?
The decisionmaker cannot have any actual bias (for example, having a financial interest in the decision or a relative that is a party to the case) or a serious risk of actual bias.
Are due process rights subject to waiver?
As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.
How does access to courts work for indigent plaintiffs?
Government fees (for example, court filing fees) must be waived when imposition of a fee would deny a fundamental right to the indigent (see infra, for discussion of fundamental rights). Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office (voting rights) must be waived. However, fees can be imposed when nonfundamental rights are involved (for example, fees for a bankruptcy discharge or review of welfare termination).
