Procedural Due Process

Question 1

What is the constitutional basis for procedural due process?

Answer 1

5th Amend: The Due Process Clause of the 5th, which applies against the federal gov’t, states: No person shall be deprived of life, liberty or property without due process of law.

Fourteenth: The Due Process Clause of the 14th, which applies to the states, says: No state shall make or enforce any law which shall deprive any person of life, liberty, or property without due process of law.

Question 2

What is due process very generally?

Answer 2

The 5th and 14th work together at a number of levels to protect the rights of individuals and other ‘persons’ like corporations against the government. At the most basic level, each cause ensures that federal and state governments must follow certain procedures before depriving any person of ‘life, liberty or property.’ Procedurally, this often means notice and hearing and similar safeguards.

Question 3

How does the 14th act against states?

Answer 3

The 14th due process clause has been interpreted to make most provisions of the bill of rights applicable against the states as well.

Question 4

which provisions in the bill of rights are incorporated?

Answer 4

1st, 2nd, 4th, most of the 5th, 6th and 8th.

Question 5

Which provisions of the bill of rights have been held NOT incorporated against the states by the 14th?

Answer 5

3rd, 5th amend right to a grand jury indictment, 6th amend right to a unanimous jury verdict in a criminal trial, 7th right to jury in civil trials

Unknown: While the 8th cruel and unusual punishments and excessive bail are incorporated, it’s not yet known whether the protection against excessive fines is incorporated.

Question 6

What is substantive due process?

Answer 6

Both Due Process clauses, the 5th and the 14th, contain a ‘substantive due process’ components that guarantees certain fundamental rights to all persons. This substantive due process acts as something of a catchall for rights not explicitly set forth elsewhere in the constitution.

Question 7

What are the general principles of procedural due process?

Answer 7

The concept of ‘fundamental fairness’ is at the heart of procedural due process. It includes an individual’s right to be notified of charges or proceedings against him and the opportunity to be heard at these proceedings.

SO: NOTICE AND HEARING

Question 8

What is the first step of a procedural due process issue?

Answer 8

When one’s liberty or property interests are adversely affected by government action, two questions are asked:

1. Is the threatened interest a protected one?
2. If so, what process is due?

PROTECTED? WHAT PROCESS?

Question 9

What role does the neutral decisionmaker play in procedural due process>

Answer 9

Due process entitles a person to a fair decisionmaker. A judge must recuse herself when she has direct, personal, substantial or pecuniary interest in a case (i.e. ACTUAL BIAS) or there is a serious risk of actual bias.

Question 10

In procedural due process issues, what is a serious risk of actual bias?

Answer 10

Proof of actual bias is not required, and subjective impartiality is not sufficient to justify a refusal to recuse.

EX: Judge who received a giant, election-swaying contribution from someone who would likely be heard in his courtroom later must recuse

Question 11

what is the standard of intent for government conduct in a due process case?

Answer 11

Due process addresses injury that results from an intentional government act. mere negligent conduct by a government employee does not trigger a due process right.

EX: prisoner’s injury due to correction of officer’s negligence was not a deprivation of liberty

Question 12

What are the protected interests under procedural due process?

Answer 12

Liberty and Property

Question 13

What constitutes an impingement of liberty for under procedural due process?

Answer 13

An impingement on liberty is generally construed to mean significant governmental restraint on one’s physical freedom, exercise of fundamental rights (i.e. those guaranteed by the constitution), or freedom of chose or action.

to recap:

1. Significant Governmental restraint
2. physical freedom
3. exercise of fundamental rights
4. freedom of choice or action

Question 14

What are some generally-accepted examples of loss of liberty under a procedural due process anaysis?

Answer 14

Commitment to a mental institution; parole revocation; loss of parental rights

NO: injury to reputation, UNLESS, the injury is so great that the individual has lost significant employment or associational rights.

Question 15

What counts as a cognizable property interest under procedural due process?

Answer 15

A cognizable property interest involves more than an abstract need or desire; there must be a ‘legitimate claim of entitlement’ by virtue of statute, employment contract, or custom.

EX: non-tenured professor on a one-year K did not have a liberty or property interest in being rehired

Question 16

What are some examples of legitimate property interests under procedural due process?

Answer 16

Yes: rights to public education, government-issued licenses, and to continued welfare and disability benefits are legitimate property interests.

NO: specific nursing home of choice, versus government nursing home benefit in general

Question 17

If it is determined in a procedural due process analysis that an individual’s protected interest is threatened by governmental action, what is the next step?

Answer 17

If an individual’s protected interest is threatened by governmental action, the next step is to determine what type of process is due. The court considers three factors in determining the amount of process that is due:

1. The private interest being threatened
2. the risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards, AND
3. The burden (fiscal and admin costs) in providing the additional process.

Under Mathews v Eldredge, the greater the importance of the threatened interest the greater the likelihood that the court will require extensive safeguards prior to the termination of the interest. Generally, the person whose interest is being deprived is entitled to notice of the government’s action by an unbiased decisionmaker and an opportunity to be heard, though not necessary before the interest is terminated. So, in Goldberg v. Kelly the court held that an individual is entitled to a hearing BEFORE terminating welfare benefits, but the hearing can be after the fact for disability or public employment benefits.

Question 18

What kind of notice and hearing is required for enemy combatants?

Answer 18

US citizens held as enemy combatants are entitled to meaningful opportunity to dispute the facts of their detention by a neutral decision-maker, albeit the opportunity is adapted to reduce the burdens on executive authority brought on by an ongoing military conflict.

Question 19

What level of notice and hearing is required to terminate parental rights?

Answer 19

Different burdens of proof are applied to termination of parental rights and paternity actions because it would deprive parents of a fundamental right. The state must then use clear and convincing evidence to support allegations of neglect. when a mother or child is initiating a paternity suit, due process requires proof by only a preponderance of the evidence. In a paternity action initiated by the state, the state must pay for the necessary blood work used to establish paternity.

Question 20

What level of notice and process is required before someone must forfeit property?

Answer 20

Forfeiture is an involuntary relinquishment of property that the government alleges is connected to criminal activity. Generally, the gov’t is required to provide the owner with notice and a hearing prior to seizure of REAL property. However, the gov’t does not need to provide notice prior to the seizure of personal property.

Question 21

What level of notice and hearing is required before terminating public employment?

Answer 21

A public employee who may be discharged only for cause has a property interest in the job. he or she is entitled to notice of termination and a pre-termination opportunity to respond. A formal hearing is not required as long as there is pre-termination notice, an opportunity to respond to the decisionmaker ANd a post-termination evidentiary hearing. If there is a significant reason for immediately removing a ‘for-cause’ employee from the job, a prompt post-suspension hearing with reinstatement and back pay if the Ee prevails suffices.

Question 22

Does denying an indigent person access to the court system because they cannot pay the fees a violation of procedural due process?

Answer 22

Only if imposing such fees would deny the indigent a fundamental right. Due process does not require fees to be waived if it is not a fundamental right.