Procedural Due Process

Question 1

Basics of Procedural Due Process

Answer 1

• due process clauses of 5th Am + 14th Am provide that a person has right to fair process when gov deprives person of life, liberty, or property
  -> note that 5th Am applies to fed gov + 14th Am applies to state govs

Question 2

Procedural Due Process - Negligence

Answer 2

• gov negligence = insufficient to state a procedural due process claim
• generally need reckless or intentional gov action

Question 3

Due Process - Liberty

Answer 3

• has been held to include more than just physical freedom
  -> includes right to contract + engage in gainful employment

Deprivation of liberty occurs if a person:
- loses significant freedom of action OR
- is denied a freedom provided by the Constitution or a statute

Question 4

Property for Due Process Purposes

Answer 4

• includes gov benefits to which there’s an entitlement (reasonable expectation of continued receipt) under state or fed law
• an abstract need or desire for a benefit is not enough

Question 5

What type of process is required?

Answer 5

• notice
• an opportunity to be heard AND
• neutral decisionmaker

Question 6

Notice

Answer 6

• must be reasonably calculated to inform the person of deprivation

Question 7

Hearing

Answer 7

Type + extent of hearing are determined by a balancing test that weighs:
- importance of the interest to the individual AND
- value of specific procedural safeguards to that interest (i.e. risk of error from current procedures used + benefits of additional procedures) AGAINST
- gov interest in fiscal + administrative efficiency (burden on gov from using additional procedures)

• typically, should give pre-deprivation hearing, unless impractical

Question 8

Neutral Decisionmaker

Answer 8

• decisionmaker cannot have any actual bias (ex: financial interest in the decision or a relative that is a party to the case) OR
• a serious risk of actual bias

Question 9

Waiver

Answer 9

• due process rights generally presumed to be subject to waiver, as long as waiver = voluntary + made knowingly

Question 10

Access to Courts

Answer 10

• gov fees must be waived when imposition of a fee would deny a fundamental right to indigent
• marriage license or divorce court filing fee or filing fee for candidates for electoral office must be waived
• fees can be imposed when nonfundamental rights are involved