Procedural due process

Question 1

What’s this all about?

Answer 1

what procedural rights must be given before depriving of liberty or property

Question 2

To receive due process, what must be deprived?

Answer 2

property or liberty

Question 3

What qualifies as “property”? Examples?

Answer 3

land and personal belongings

AND

• EXISTING ENTITLEMENT
• to a specific BENEFIT under fed or state law
• for which there is a LEGITIMATE EXPECTATION
• that the benefit CONTINUE

Question 4

Examples of “entitlement” property

Answer 4

Examples:
- continued attendance at public school
- continued receipt of welfare benefits
- continued public employment (w/ gov’t)
(these aren’t fundamental rights, so no substantive due process)

Question 5

What qualifies as a “liberty”?

Answer 5

freedom from bodily injury or physical restraint

AND

• freedom to EXERCISE FUNDAMENTAL RIGHTS
• that have been impaired by INTENTIONAL gov’t action
  (negligent gov’t behavior doesn’t give rise to PDP claim)

Question 6

Damage to reputation entitled to PDP?

Answer 6

No, not property or a liberty

But if reputation PLUS (job, child custody) -> PDP

Question 7

What process is due? (3 things)

Answer 7

notice and

a fair hearing

before an unbiased decision maker

Question 8

What are the required type and timing of procedures? What’s the rule called?

Answer 8

Matthews 3-part balancing test

Question 9

Matthews 3-part balancing test (to determine type and timing of procedures)… weighs…

Answer 9

1) IMPORTANCE OF THE INTEREST to the P,

AND

2) the ability of additional procedures to increase the ACCURACY of fact finding

AGAINST
3) the gov’t interest in administrative efficiency and cost

Question 10

Rule of thumb for type and timing re: state benefits for life necessities (property) (and example)

Answer 10

the more likely the state benefit is considered a LIFE NECESSITY,

(type) the more likely DP requires a FORMAL trial-type hearing
(timing) BEFORE deprivation of benefit
ex. trial-type evidentiary hearing prior to termination of welfare benefits (based on need) but only AFTER termination of disability benefits (not based on need)

Question 11

Rule of thumb for type and timing re: ordinary benefits (property) and public danger (and example)

Answer 11

for ordinary public benefits (not life necessities),

(type) less formal procedures permitted

and IF there’s a public danger,
(timing) post-termination of the benefit

ex. notice and opportunity to respond to charges BEFORE suspension from public school (not fund. right), BUT
only AFTER removal if student’s presence presents danger to persons or property

Question 12

Rule of thumb for type and timing re: gov’t as ER (and example)

Answer 12

If gov’t acting as ER (managing workforce)

favor fiscal and administrative efficiency

pre-termination: informal, post-termination: formal (eventually, EE will get a formal hearing)

ex. notice and opp to respond to charges BEFORE “for cause” removal (creates property interst in gov’t job), provided trial-type evidentiary hearing AFTER termination