procedural due process Flashcards
source of law
5th Am DPC - fed
14th AM DPC - state
general rule
a person has a right to a fair process when the government deprives the person of life, liberty, or property.
definitions of “life” for DP
Definition of “deprivation” for DPC
intentional government conduct resulting in loss of life, liberty, property
not merely negligence
what does DP typically look like?
a hearing
Definition of “liberty” for DPC
physical freedom
legal rights - right to contract and engage in employment, right to vote, denial of constitutional freedom
not mere harm to reputation
“property” definition for DPC
real or personal property
tangible or intangible property (like stocks)
government benefits to which individual has legit entitlement under state or federal law - reasonable expectation of continued receipt
[ex: statutory entitlement to redressing of employment discrimination]
government benefits that are property interests pursuant to DPC
welfare, public education, government licenses, tenured employment, term employment, NOT at-will employment
what process is due
notice
opp to be heard
neutral decision maker
notice requirement in DP
reasonably calcualated to inform you what deprivation you will suffer
opp to be heard requirement in DP
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 ben- efits of additional procedures),
against
- The government interest in fiscal and administrative efficiency (that is, the burden on the government from using additional pro- cedures)
Typically, the claimant should be given a pre-deprivation hearing, unless that would be impracticable.
Ex: termination of parental rights gets pre deprivation hearing, but US citizen-enemy combatant only entitled to post-deprivation
neutral decision maker requirement for DP
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 (campaign contributions to judges)
when may continued public employment be a protected property interest
if there is a clear practice or mutual understanding that an employee can be terminated only for cause. if you can establish this, you must be given a reason for your termination
what process is required for the following:
- commitment to mental institution
- welfare benefits
- disability benefits
- Public employment (tenure or termination only for cause)
- Public Education
- Driver’s license suspension
- termination of parent’s custody rights
- Civil forfeitures
- detention of citizen enemy combatants
- commitment to mental institution
Adults: Prior notice and prior evidentiary hearing (except in emergency).
Children: Prior screening by
“neutral factfinder.” (Parental consent alone insufficient.)
- welfare benefits
Prior notice and prior evidentiary hearing.
- disability benefits
Prior notice and opportunity to respond,
and subsequent evidentiary hearing.
- Public employment (tenure or termination only for cause)
Generally, prior notice and opportunity to respond, and subsequent evidentiary hearing.
- Public Education (disciplinary suspension or academic dismissal)
Prior notice and opportunity to respond; no formal evidentiary hearing required.
- Driver’s license suspension
Prior evidentiary hearing. Exception: Breathalyzer test suspension statutes.
- termination of parent’s custody rights
Prior notice and prior evidentiary hearing. Clear and convincing evidence required.
- Civil forfeitures
Prior notice and evidentiary hearing for real property; subsequent notice and hearing for personal property.
- detention of citizen enemy combatants
Subsequent notice and a meaningful opportunity to contest the factual basis for detention before a neutral decisionmaker.
when are due process rights subject to waiver?
if the waiver is voluntary and made knowingly
