Procedural Due Process Flashcards
What is procedural due process?
The procedures that government must follow when taking away life, liberty, or property.
What are three questions to ask when doing an examination of procedural due process?
1) Has there been a deprivation of due process?
2) Is it of life, liberty, or property?
3) Is it without due process of law?
What are the two goals of procedural due process?
1) Prevent the abuse of power by government/ prevent oppression;
2) Promote fairness - Fairness is not the result, but rather, there must be fairness in the process and procedures used.
Do the police have a duty to protect an individual? (Daniels v. Williams)
No. The police have a duty to society as a whole, not an individual though.
Is simple negligence by a government actor enough to prove a due process violation?
No.
DeShaney v. Winnebago Social Services
Does the government have a duty to protect a private citizen from another private citizen?
No. The Court will examine the custody of the individual:
a) If in the custody of the government, then the government has a duty to provide safety and care for the person;
b) If in the custody of a private person, then the government does not have a duty.
What is required for a property interest?
i. More than an abstract need or desire;
ii. More than unilateral expectation to it;
iii. Have a legitimate claim of entitlement to it.
What is the difference between a Right and a benefit/privilege
Right: Guaranteed, enforceable at law, create a performance obligation.
Benefit/Privilege: Not guaranteed, not a protected entitlement (if government officials can grant it or deny it in their discretion)
Goss v. Lopez
Once a state has given a right, can they simply take it away?
No. Once a state has given rights to someone, they cannot remove those rights without following the proper procedures.
Before students can be removed from school, what rights must be given to them?
1) oral/ written notice of the charges;
2) Explanation of evidence;
3) Opportunity to explain themselves.
Is an injury to reputation enough to prove a violation of due process?
No. It must be an injury to their reputation plus something more.
How will the court examine liberty interests of prisoners?
Court will base its determination of whether there is a liberty interest on the content of the statutes or rules, rather than on the importance of the interests to that individual.
What is the test seen in Mathews v. Eldridge for determining whether a due process violation has occurred?
1) The private interest that will be affected by the official action;
2) The risk of erroneous deprivation of such interest through the procedures used, and the probable of addition procedures;
3) The governments interests in the current procedures.
What procedures are required prior to termination of a government job?
Government can fire an employee without a full hearing prior to termination. It is sufficient that there is a pertermination hearing where it is possible for the employee to defend themselves.
Does the government have to provide new technology to indigent defendant’s?
No. The state has flexibility in determining what procedures are needed in the context of post-conviction relief. When a state chooses to offer to help those seeking relief from convictions, due process does not dictate the exact form it must take.
