Procedural due process Flashcards
Due process: deprivation
Deprivation requires an intentional taking of life, liberty, and property.
Liberty
Liberty interests are implicated by physical confinement, probation and parole, physical injury (e.g., school discipline), restrictions on legal rights (e.g., punishment of free speech), among others.
Injury to reputation is not a loss of liberty.
Property: government employment
There is a property interest in a government job if the employee has a legitimate entitlement to continued enjoyment of the job.
Government jobs are entitlements only when the government says so, e.g., by contract or by “for cause” protection.
Property: entitlements
There is a property interest in government benefits if they are entitlements.
Most government benefits are entitlements—and hence, property.
Due process: balancing test
To determine what kind of process is due, courts balance three factors:
(1) The individual interests at stake—i.e., life, liberty, or property;
(2) The value of the procedure in protecting that interest; and
(3) The government’s interest in efficiency and cost.
Recusal
Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case or there is a serious risk of actual bias.
Due process: forfeiture statutes
Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute.
The government, however, does not need to provide notice prior to the seizure of personal property.
Academic dismissal
A student is not entitled to a hearing with regard to dismissal for academic reasons from a public institution of higher learning.
So long as a student was provided with notice of her academic shortcomings and an opportunity to correct those shortcomings, she was provided with adequate procedural due process.
Government enforcement
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.
Thus, if enforcement of the restraining order is subject to the discretion of the police officers, then a person cannot assert an absolute entitlement to having the order enforced—i.e., there is no procedural due process right to compel such enforcement.
Pre-deprivation hearings
Pre-deprivation hearings are required certain entitlements, including:
- termination of welfare benefits;
- non-emergency revocations of driver’s licenses;
(2) Post-deprivation hearings
The hearing can occur after the action so long as the hearing is prompt and fair.
Examples include termination of disability benefits and disciplinary suspension from a public secondary school.
Pre-deprivation hearings: public employees protected “for cause”
Public employees protected “for cause” must be given some opportunity to be heard prior to discharge unless there is a significant reason not to keep the employee on the job.
If there is a significant reason, the the discharge can come first, with a subsequent hearing that is prompt and, if applicable, provides reinstatement with fair back pay.
Post-deprivation hearings
Post-deprivation hearings are acceptable for certain interests, including:
- termination of disability benefits;
- disciplinary suspension from a public secondary school.
