Procedural Due Process Flashcards
basic principle
PROCEDURAL DP
= before the government may deprive a person of liberty or property, the gov must give the person notice of termination (including reasons for termination) and some form of hearing
2 issues
BASIC PRINCIPLE
all procedural DP problems can be broken down into 2 issues:
- has there been an deprivation of life, liberty, or property?
- if so, what procedures are required?
definition
DEPRIVATION OF LIBERTY
= occurs if there a loss of significant freedom provided by constitution or statute
liberty
DEPRIVATION OF LIBERTY
= freedom from confinement
harm to reputation
DEPRIVATION OF LIBERTY
= by itself not a loss of liberty
institutionalization of adult
DEPRIVATION OF LIBERTY
except in an emergency, before an adult can be institutionalized, must be notice and a hearing
institutionalization of child
DEPRIVATION OF LIBERTY
when a parent institutionalizes a child, must only be a screening by neutral fact-finder
definition
DEPRIVATION OF PROPERTY
= occurs if a person has an entitlement and that entitlement is not fulfilled
property
DEPRIVATION OF PROPERTY
property exists if there is an entitlement
entitlement
DEPRIVATION OF PROPERTY
entitlement exists if there is a reasonable expectation to continue receipt of a benefit
negligent deprivation
DEPRIVATION OF RIGHT
= generally insufficient to state a claim of DP (DP requires intentional or at least reckless gov action)
intentional deprivation
DEPRIVATION OF RIGHT
in emergency situations, gov can be held liable ONLY IF the officer’s conduct shocks the conscience
protection
DEPRIVATION OF RIGHT
- gov’s failure to protect people from privately inflicted harms does not violate DP
- gov only has duty to provide protection IF
1. the gov created the danger OR
2. the person is in gov custody
mathews v. eldridge test
REQUIRED PROCEDURES
3-part balancing test for what procedures are required when deprived of life/liberty/property
i. importance of the interest to the individual
ii. ability of additional procedures to increase the accuracy of the factfinding
iii. government’s interest (usually in efficiency)
public education - corporal punishment
REQUIRED PROCEDURES
doesn’t require any DP
punitive damages
REQUIRED PROCEDURES
- punitive damages require instructions to the jury and judicial review
- grossly excessive punitive damages violate DP
indigent plaintiffs
ACCESS TO COURTS
- may often be a fee for government services, including a fee for use of courts
- whether the government must waive such fees for indigents depends on the nature of the rights involved
fundamental rights - DP waiver
ACCESS TO COURTS
waiver required
= SC has required waiver of gov fees when the imposition of a fee would deny a fundamental right to the indigent
nonfundamental rights - DP waiver
ACCESS TO COURTS
waiver not required
= when there is no fundamental right regulated by imposition of fee, gov can refuse to grant the service to those persons who cannot pay
fundamental rights - examples
ACCESS TO COURTS
- inability to pay marriage license fee or divorce court filing fee
- inability of candidate for electoral office to pay filing fee to run
- inability to pay cost of transcript to appeal termination of parental rights
nonfundamental rights - examples
ACCESS TO COURTS
- fed gov can refuse to grant access to bankruptcy courts to persons who cannot pay filing fee (no fundamental right to receive a bankruptcy discharge from debts)
- state can limit judicial review of welfare termination hearing to those who pay $25 fee
movement of inmate
REQUIRED PROCEDURES
- cannot be moved to mental institutional w/o DP
- can be moved cross-country w/o DP
- can be put in solitary confinement w/o DP
alien entering country
REQUIRED PROCEDURES
can be prevented from entering w/o DP when national security is at risk
neutral decisionmaker
REQUIRED PROCEDURES
DP requires recusal when probability of ACTUAL bias on the part of the judge is TOO HIGH to be CONSTITUTIONALLY TOLERABLE
