Procedural Due Process

Question 1

Basic Principle of Procedural Due Process

Answer 1

The Due Process Clause of the Fifth Amendment (applicable to federal government) and the Fourteenth Amendment (applicable to states) provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property.

NOTE - government negligence is insufficient to state a procedural due process claim, generally there must be an intentional or reckless governmental action

Question 2

Liberty

Answer 2

Liberty is not specifically defined in the constitution. However, it has been held to include more than just physical freedom (includes the right to contract and engage in gainful employment).

A deprivation of liberty occurs if a person
1) loses significant freedom of action; or
2) is denied a freedom provided by the constitution or statute

NOTE - injury to reputation itself is not a deprivation of liberty or property

Question 3

Property

Answer 3

Property includes not only personal and real property, but also governmental benefits to which there is an entitlement under state or federal law. An entitlement is a reasonable expectation of continued receipt.

An abstract need or desire for or unilateral expectation of benefits is not enough

Question 4

Examples of Property Interests

Answer 4

Welfare benefits, public education, government licenses, tenured government employment or term employment for the duration of a term

NOTE - it does not include at will employment

Question 5

What does Due Process Require

Answer 5

Procedural Due Process Requires
1) notice
2) an opportunity to be heard
3) a neutral decision maker

Question 6

Notice Requirement

Answer 6

The notice must be reasonably calculated to inform the person of deprivation

Question 7

Hearing Requirement

Answer 7

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

1) the importance of the interest to the individual

2) the value of specific procedural safeguards to that interest (the risk of error from the current procedures used and the benefits of additional process)

3) the government interest in fiscal and administrative efficiency (burden of additional process)

Typically, the claimant must be given a pre-deprivation hearing unless it would be impracticable

Question 8

Neutral Decision Maker

Answer 8

A decision maker cannot have any actual bias or a serious risk of actual bias

EX: a financial interest in the decision or a relative that is a party to the case

Question 9

Process for Commitment to Mental Institution

Answer 9

Adults - prior notice and prior evidentiary hearing (except in emergency)

Children - prior screening by a neutral fact-finder (parental consent alone is insufficient)

Question 10

Process for Welfare Benefits

Answer 10

Prior notice and prior evidentiary hearing

Question 11

Process for Disability Benefits

Answer 11

prior notice and opportunity to respond and a subsequent evidentiary hearing

Question 12

Process for Public Employment (for cause)

Answer 12

Prior notice and opportunity to respond and a subsequent evidentiary hearing

Question 13

Process for Public Education

Answer 13

Prior notice and opportunity to respond - no formal evidentiary hearing required

Question 14

Process for Suspended Driver’s License

Answer 14

Prior evidentiary hearing

Exception - breathalyzer test suspension statutes

Question 15

Process for Termination of Parent’s Custody Rights

Answer 15

Prior notice and prior evidentiary hearing. Clear and convincing evidence required.

Question 16

Process for Civil Forfeitures

Answer 16

Prior notice and evidentiary hearing for real property. Subsequent notice and hearing for personal property

Question 17

Process for Detention of Citizen Enemy Combatants

Answer 17

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