Procedural Due Process

Question 1

What Amendments implicate Procedural Due Process?

Answer 1

Fifth Amendment for the federal government.

Fourteenth Amendment for the states.

Question 2

What is procedural due process in general?

What does the it generally entitle a party to?

Answer 2

It ensures the necessary procedures are followed before depriving individuals and other “persons” (e.g., corporations) of “life, liberty, or property.”

Generally entitles a party to notice of government’s action and an opportunity to be heard.

Question 3

What does the court balance in determining whether procedural due process has been met or not?

Answer 3

Court balances
-> the private interest affected
-> the risk of erroneous deprivation using current procedures and the probably value of additional/substitute safeguards
AND
-> the government’s interest

Question 4

What does the 14th Amendment due to ensure procedural due process?

Answer 4

It incorporates and ensures that most provisions of the Bill of Rights are applicable against states.

Question 5

What is the “substantive due process” of both the 5th and 14th Amendment Due Process Clause?

Answer 5

Guarantees fundamental rights to all persons; a “catchall” for rights not explicitly set forth in the Constitution.

Question 6

What are the general principles when Procedural Due Process is applied?

Answer 6

General principles
-> fundamental fairness - includes the right to be notified of charges or proceedings and the opportunity to be heard
-> neutral decision maker
-> intentional governmental act - mere negligence does not trigger due process

Question 7

What is the question to ask to see if fundamental fairness has been violated?

Answer 7

Is the threatened interest a protected one?

If so, what process is due?

Question 8

What are the two protected interests of the Procedural Due Process Clauses?

Answer 8

Protected interests are:
-> liberty
-> property

Question 9

What does it mean for there to be “an impingement on liberty”?

Answer 9

An impingement on liberty is significant governmental restraint on one’s physical freedom, fundamental rights, or freedom of choice or action.

Question 10

What does a protected “property interest” require?

Answer 10

There must be a legitimate claim of entitlement by virtue of statute, employment contract, or custom in the property.

Question 11

How do you determine the amount of process that is due?

Answer 11

Notice and hearing - the amount of process due is determined on three factors:
-> the private interest affected
-> the risk of erroneous deprivation and value of additional safeguards
AND
-> the government’s interest, including the burden (cost) of additional process

Question 12

How is court access protected for indigent persons?

Answer 12

Court fees are waived for an indigent person if the fees will deny a fundamental right.

Counsel is appointed for indigent criminal defendants.