Procedural Due Process Flashcards
Situation 1: When a criminal conviction is sufficient for the revocation of a state-license.
A doctor who was licensed to practice medicine in a particular state was convicted in state court of improperly distributing specified drugs by writing prescriptions for fictitious persons. Under state law, such an abuse of the prescription-writing privilege requires revocation of a doctor’s license. After it received an official notification of the doctor’s conviction, the state medical board revoked the doctor’s license without affording the doctor any opportunity for a hearing. The doctor has sued the board in state court to set aside the revocation, alleging deprivation of property without due process of law because the board did not provide an opportunity for a trial-type hearing before revoking the license.
Which of the following is the strongest argument in support of the state medical board?
(A) A doctor’s license to practice is a privilege,
not a right, and therefore is not property
within the meaning of the due process clause
of the Fourteenth Amendment.
(B) Due process requires a balancing of
interests, and the state’s interest in
preventing drug abuse outweighs the
doctor’s interest in the particular procedure
followed in the disciplinary proceeding.
(C) The adjudicative facts necessary to revoke
the doctor’s license were determined in the
criminal trial, and therefore due process does
not require any further trial-type hearing.
(D) The licensing board was required to
summarily revoke the doctor’s license
because Article IV, Section 1, of the
Constitution requires the licensing board
to give full faith and credit to the doctor’s
criminal conviction.
ANSWER: (C) The adjudicative facts necessary to revoke the doctor’s license were determined in the criminal trial, and therefore due process does not require any further trial-type hearing.
The state agency decision to disqualify licensed doctor, lawyer, professional from working in a state-licensed program due to his criminal record did not require evidentiary hearing; because the conviction was not contested, the court saw no value to an evidentiary hearing and found opportunity for written submission to contest the disqualification was sufficient
A license to practice law, be a doctor, etc.
After conviction in a criminal trial. The state board revoked the license without affording the doctor any opportunity for a hearing.
Situation 2: Agency does not provide the owner an opportunity before
A state statute provided for the suspension or revocation of a retail business license where there have been “repeated violations” of specified regulatory statutes by any one individual or business. A store owner had already been fined three times under the statute. Several days later, the store owner received a notice from the regulatory agency that was created by the statute stating that his business license will be suspended for 21 days for violation of the statute.
If the store owner files suit to set aside the suspension, will the owner most likely prevail?
A. Yes, because the statute fails to set forth the exact number of violations that a business would have to commit before its business license is revoked.
B. Yes, because the store owner has not been given a hearing before the agency.
C. No, because the agency could by its rules construe the term “repeated violations” in such a manner as to comport with due process requirements.
D. No, because the agency is merely a regulatory agency, and therefore the store owner has no right to a hearing.
ANSWER: B. Yes, because the store owner has not been given a hearing before the agency.
The most obvious problem in this situation is that the store owner has not been afforded the right to a hearing either before or after his license was suspended.
A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property.
Situation 3: Termination of a “for cause” employee
According to a state law, state employees may be fired only “for good cause.” A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman’s request for a hearing to allow her to contest the charge.
In a suit to reinstate her employment, which of the following claims provides the MOST support for the woman?
ANSWER: The state’s firing of her without affording her an opportunity for a hearing was an unconstitutional denial of
procedural due process.
Here, the state had such a law that provides that state employees can be fired only for good cause, therefore, a person has a legitimate claim of entitlement to, and thus a property interest in, his or her job.
Thus, the woman was therefore entitled to notice and the opportunity for a hearing before she was fired.
A state statute declares that after five years of continuous service in their positions all state employees, including faculty members at the state university, are entitled to retain their positions during “good behavior.” The statute also contains a number of procedural provisions. Any state employee who is dismissed after that five-year period must be given reasons for the dismissal before it takes effect. In addition, such an employee must, upon request, be granted a post-dismissal hearing before an administrative board to seek
reinstatement and back pay. The statute precludes any other hearing or opportunity to respond to the charges. That postdismissal hearing must occur within six months after the dismissal takes effect. The burden of proof at such a hearing is on the state, and the board may uphold the dismissal only if it is supported by a preponderance of the evidence. An employee who is dissatisfied with a decision of the board after a hearing may appeal its decision to the state courts. The provisions of this statute are inseverable.
A teacher who had been employed continuously for seven years as a faculty member at the state university was dismissed. A week before the dismissal took effect, she was informed that she was being dismissed because of a charge that she accepted a bribe from a student in return for raising the student’s final grade in her course. At that time she requested an immediate hearing to contest the propriety of her dismissal.
Three months after her dismissal, she was granted a hearing before the state administrative board. The board upheld her
dismissal, finding that the charge against her was supported by a preponderance of the evidence presented at the hearing.
The faculty member did not appeal the decision of the state administrative board to the state courts. Instead, she sought a
declaratory judgment in federal district court to the effect that the state statute prescribing the procedures for her dismissal is unconstitutional.
In this case, the federal district court should?
ANSWER: Hold the statute unconstitutional, because a state may not ordinarily deprive an employee of a property interest in a job without giving the employee an opportunity for some kind of pre-dismissal hearing to respond to the charges against that employee.
Situation 4: Depravation of a right to receipt of a continued benefit
The owner of a barbershop in State A, is a licensed barber in State A. The State A barber licensing statute provides that the Barber Licensing Board may revoke a barber license if it finds that a licensee has used his or her business premises for an illegal purpose. John was arrested by federal narcotics enforcement agents on a charge of selling cocaine in his barbershop in violation of federal laws. However, the local United States Attorney declined to prosecute and the charges were dropped.
Nevertheless, the Barber Licensing Board commenced a proceeding against John to revoke his license on the ground that John used his business premises for illegal sales of cocaine. At a subsequent hearing before the board, the only evidence against John was affidavits by unnamed informants, who were not present or available for cross-examination. Their affidavits stated that they purchased cocaine from John in his barbershop. Based solely on this evidence, the board found that John used his business premises for an illegal purpose and ordered his license revoked.
In a suit by the barbershop owner to have this revocation set aside, the best constitutional argument is that?
In a suit by the barbershop owner to have this revocation set aside, which of the following claims provides the MOST support for the owner?
(A) John’s inability to cross-examine his accusers denied him a fair hearing and caused him to be deprived of his barber license without due process of law.
(B) the administrative license revocation proceeding was invalid, because it denied full faith and credit to the dismissal of the criminal charges by the United States Attorney.
(C) Article III requires a penalty of the kind imposed on John to be imposed by a court rather than an administrative agency.
(D) the existence of federal laws penalizing the illegal sale of cocaine preempts state action relating to drug trafficking of the kind involved in John’s case.
ANSWER: (A) John’s inability to cross-examine his accusers denied him a fair hearing and caused him to be deprived of his barber license without due process of law.
According to a state law, state employees may be fired only “for good cause.” A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman’s request for a hearing to allow her to contest the charge.
In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman?
(A) The state’s firing of her unconstitutionally
abridged her freedom of speech.
(B) The state’s firing of her unconstitutionally
denied her a privilege or immunity of state
citizenship protected by Article IV.
(C) The state’s firing of her violated the
supremacy clause of Article VI, because it
interfered with the enforcement of federal
rules.
(D) The state’s firing of her without affording
her an opportunity for a hearing was an
unconstitutional denial of procedural due
process.
ANSWER: (B) The state’s firing of her unconstitutionally denied her a privilege or immunity of state citizenship protected by Article IV.
BECAUSE the P&I clause of Article IV reaches only state actions that discriminate against citizens of other states. Here, the women is a citizen of the state that employed her and is a resident of that state.
Which of the following situations is LEAST likely to raise a procedural due process concern?
- State legislation that affects the rights of the general population.
- A state agency firing an at-will employee
- Negligent inaction by a state agency that results in injury to an individual.
Negligent inaction by a state agency that results in injury to an individual.
Note that the finding of recklessness is important: government negligence is insufficient to state a procedural due process claim. There generally must be an intentional or reckless government action.
A state statute provides a remedy for victims of employment discrimination. The statute requires complainants to bring charges before the state’s fair employment commission within 180 days of the alleged unlawful employment practices. The commission then has 120 days to convene a fact-finding conference to obtain evidence, ascertain the parties’ positions, and explore settlement possibilities. An employee was discharged from his job purportedly because of a physical handicap unrelated to his ability to perform his job. The employee filed a timely complaint, alleging unlawful termination of employment, as required by the statute. However, the commission scheduled the fact-finding conference five days after the 120-day statutory period expired. At the conference, the employer moved that the charge be dismissed for lack of a timely conference. The commission denied the motion. The employer petitioned the state supreme court. The court found that the failure to hold the hearing in a timely manner was part of a larger pattern of mismanagement that amounted to a reckless disregard for employees’ rights. Nonetheless, the state court held for the employer, stating that the failure to comply with the 120-day requirement deprived the commission of jurisdiction to consider the employee’s charge. On appeal to the United States Supreme Court, the employee argues that his right to due process will be violated if the reckless mismanagement of the commission’s schedule is allowed to extinguish his cause of action.
Which of the following best describes the viability of the employee’s due process claim?
The claim succeeds, because the employee had a protected property interest in the remedy.
Which of the following situations is most likely to raise a procedural due process concern?
A judge has an interest in the case before her that causes a serious risk of bias.
If a judge has an interest in a case before her that causes a serious risk of bias, or actual bias, a procedural due process concern arises.
Procedural Due Process
Due Process Clauses of the Fifth Amendment (applicable to the federal government)
The Fourteenth Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law.
Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge).
Under the Due Process Clause, the following government act is NOT considered deprivations of liberty:
Defamation without a tangible loss
Deprivation of liberty under the Due Process Clause.
What governmental acts are considered deprivations of liberty?
A deprivation of liberty occurs if a person:
(i) loses significant freedom of action; or
(ii) is denied a freedom provided by the Constitution or a statute.
Government acts that cause
1. denial of the right to engage in gainful employment,
- loss of a freedom provided by the Constitution, or
- denial of the right to vote
For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has ___________________?
An abstract need or desire or a unilateral expectation of the benefit is not enough.
A legitimate claim or entitlement to the benefit.
There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy.
For example, a government employee who may be fired only for cause has a legitimate claim to continued employment and thus has a property interest in her job.
An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker.
Whether an individual is entitled to notice, a hearing, or some other fairness consideration depends on the circumstances of the particular deprivation.
Which of the following is NOT a factor a court will consider in determining the type of procedural due process that is required?
The opportunity for the individual to be represented by counsel.
There is no across-the-board right to counsel under the Constitution in any event.
An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker.
Whether an individual is entitled to notice, a hearing, or some other fairness consideration depends on the circumstances of the particular deprivation.
Which of the following are the factors a court will consider in determining the type of procedural due process that is required?
The importance of the individual’s interest that is involved.
The government’s interest in fiscal and administrative efficiency.
The value of specific procedural safeguards of the individual’s interest.
However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.
For many years, civil service rules have provided that any member of the city’s police department must serve a one-year probationary period before he or she will be considered a permanent employee. However, because the rules were enacted before the city’s police academy was established, a prospective police officer now spends six months in the academy before being hired by the city. A graduate of the police academy was with the city police department for eight months after graduation when she was terminated. There were no city ordinances or state laws that required that she be given either a reason for the termination or a hearing, and she was given neither. The graduate brought suit against the city in state court because of the termination of her employment, alleging a violation of her due process rights.
Which of the following would most likely give her a constitutional basis to require the city to give her a statement of reasons for the termination and an opportunity for a hearing?
No police officer had ever been terminated during probation except where there was actual cause.
A state statute has detailed classifications of civil servants for both state and city positions. It provides that all civil servants who have been employed for over 18 months may be dismissed only for “misconduct” and also requires that state and city agencies comply with all procedures set forth in any personnel handbook issued by that agency. The personnel handbook of the state tollway authority sets forth detailed procedures for dismissal of civil servant employees. The handbook provides that written notice of the grounds for dismissal must be given to the employee prior to dismissal, and that the employee must, on request, be granted a post-dismissal hearing within three months after the dismissal takes effect. An employee is entitled to present witnesses and evidence at the post-dismissal hearing, and is entitled to reinstatement and back pay if the hearing board decides that the employer has not shown by a preponderance of the evidence that the dismissal was justified.
A state tollway employee who had been employed for three years recently was fired. After an investigation by state auditors, the employee was notified by registered letter that he was being dismissed because of evidence that he took bribes from construction firms in exchange for steering contracts to them. He was informed of his right to a hearing and requested one as soon as possible. Three weeks after his dismissal, the state personnel board conducted a hearing at which the employee denied the charges and presented witnesses to attest to his honesty. At the conclusion of the hearing, the board upheld his dismissal, finding that it was supported by a preponderance of the evidence.
If a state court were to rule that the employee had been deprived of the right to procedural due process, which of the following states the most likely reason?
A The employee had a right to a pretermination hearing at which he could present witnesses to support his side of the story.
B The employee had a right to have an opportunity to respond to the charges prior to his dismissal.
C The state’s hearing procedures are insufficient because employees who have protected interests in public employment have a right to have a civil jury, not the state personnel board, determine whether the dismissal was proper.
D A post-termination hearing is always insufficient when an employee has a property interest in continued public employment.
ANSWER: The employee had a right to have an opportunity to respond to the charges prior to his dismissal.
Under a state aid-to-education statute, one private school receives: (i) free textbooks from the state, (ii) an exemption from state taxes, and (iii) 20% of its operating budget in the form of state grants. The remaining 80% of the school’s budget is covered by tuition fees and by donations from alumni and others. The school is licensed by the state, but the state has no requirement for certification and licensure of teachers in private schools.
A teacher was hired and given the school’s standard three-year contract. In the fall term of his second year, the teacher gave a lecture to his students criticizing the school’s use of school uniforms and encouraging the students to organize a protest against the uniform policy. After the speech, the teacher was called to the administrative office by the headmaster and fired on the spot, despite the teacher’s protests that he had almost two years left on his contract. The teacher requested a hearing and was told to leave the premises of the school immediately. The teacher files suit in federal district court, alleging that his constitutional rights have been violated.
Is the teacher likely to succeed?
No, because there was no constitutional violation here.
Assume the school was a public school.
Which of the following is the strongest argument in support of the public-school board?
The school reasonably could argue that urging the students to organize a protest against a school policy would disrupt discipline and interfere with its educational process.
Even a public school probably could have fired the teacher for his speech (if its termination procedures were otherwise proper).
Because public schools generally are not public forums, reasonable restrictions based on legitimate pedagogical concerns rather than the content of the speech are permissible.
Had the teacher been fired by a public school, he would be able to claim a property right in his employment for the balance of his contract.
The school probably would have had to provide him with a pretermination opportunity to respond to the charges against him.
Which of the following statements is most accurate regarding the agency’s right to dismiss the employee?
- When the employee does not have a property interest in the job
- But the employee is fired over speech related incident (expressing his views online)
- The employee is entitled to a hearing because he has a liberty interest in the exercise of his First Amendment rights.
Due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient.
Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech.
A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority.
If the employee is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his dismissal.
