Procedural Due Process

Question 1

What is the source of “procedural due process?

Answer 1

5th and 14th amendment due process clauses

Question 2

What does “procedural due process” require?

Answer 2

Fair Process (notice/hearing) is required for gov to take a person’s “life, liberty, or property”

NOTE: only INTENTIONAL (not negligent) deprivation of these rights violates DP clause

Question 3

What issues arise in “Procedural due process”?

Answer 3

1. What constitutes “liberty” or “property” so as to implicate DP
2. What process is required (balancing test)

Question 4

For the purpose of “Procedural due process”, what is “liberty”?

Answer 4

• “Liberty” is NOT specifically defined
• includes MORE than just freedom from bodily restraints (includes right to contract/right to engage in gainful employment)
• A deprivation of liberty occurs IF a person:
  1. loses significant freedom of action; OR
  2. is denied a freedom provided by the constitution or statute

NOTE: prisoners have little interest in liberty

Question 5

For the purpose of “Procedural due process”, what is “property”?

Answer 5

RULE –> There must be a LEGITIMATE CLAIM or ENTITLEMENT to the benefit under state or federal law

Note: “property” includes MORE than personal belongings and realty, but an abstract need, desire, or unilateral expectation of a benefit is not enough

Examples —>

1. continued attendance at public school;
2. welfare benefits
3. in some cases, gov employment

Question 6

What is the MBE trick re: the definition of property interest?

Answer 6

• distinction btwn “right” and “privilege” is a red herring for the purpose of determining whether something is a property interest.
• This is an old test that has since been rejected by the court.
• if you see this on test, don’t choose it. (the correct term to look for is entitlement)

Question 7

What standard applies to determining the type of process required?

Answer 7

• The TYPE and EXTENT of required procedures depends on 3 part balancing test:

1. IMPORTANCE of interest to the individual
2. value of SPECIFIC SAFEGUARDS to that interest;
3. GOV INTEREST in FISCAL AND ADMIN EFFICIENCY

NOTE:

• fair procedures and unbiased decision maker, always required
• Notice and chance to respond, almost always required

Question 8

What is the rule regarding procedural due process and waiver?

Answer 8

DP rights are subject to waiver if it is KNOWING and VOLUNTARY

Question 9

What is the rule re: procedural DP and indigent plaintiffs?

Answer 9

• gov fees (ie…court filing fees) must be waived when imposition of a fee would deny a FUNDAMENTAL RIGHT to the indigent
  Example:
  1. marriage license, divorce filing fee (privacy rights)
  2. filing fee for candidates for electoral office (voting rights)

HOWEVER –> fees can be imposed when non-fundamental rights are involed
Example –>
1. bankruptcy discharge;
2. review of welfare termination