PROCEDURAL DUE PROCESS

Question 1

BASIC PRINCIPLE

Answer 1

• DPCs of 5th Amend (fed gov) & 14th Amend (states) provide that gov shall not take a person’s life, liberty, or property w/o due process of law.
• Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge).

Question 2

When Is Individualized Adjudication Required?

Answer 2

• There is a right to procedural due process only when gov acts to deprive an INDIVIDUAL of life, liberty, or property (see below).
• There is no right to individualized adjudication when gov acts GENERALLY, even if action will result in
  burdening individuals’ life, liberty, or property interests.

Question 3

Intentional Deprivation vs. Negligent Deprivation

Answer 3

• Gov NEGLIGENCE is INSUFFICIENT to state a procedural due process claim.
• There generally must be an INTENTIONAL/RECKLESS gov action.
• EX. cases finding no procedural due process violation where the alleged negligence of prison officials caused physical injury to inmates

Question 4

“Deprivation”

Answer 4

• A “deprivation” of life, liberty, or property requires more than a mere denial of certain kinds of remedies
• Only when gov affords NO REMEDY/INADEQUATE remedies may a deprivation of life, liberty, or property result.

Question 5

Fair, Neutral Decisionmaker—Judge Bias

Answer 5

• DPC requires a judge to recuse himself when he has actual bias (eX. he has a direct, personal, substantial, pecuniary interest in a case) or when there is merely a serious risk of actual bias.
• A serious risk of actual bias exists when “under a realistic appraisal of psychological tendencies & human weakness,” the judge’s interest poses such a risk of actual bias/prejudice that it must be forbidden.

Question 6

Protection vs. Creation

Answer 6

• DPCs do not create property/liberty interests; their purpose is to provide procedural safeguards against arbitrary deprivation.
• Hence, 14th Amend DPC does not, for ex, give out-of-state attorneys right to appear in state cts w/o meeting a state’s bar admission requirements.

Question 7

IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN?

Answer 7

• Older SC cases indicated that due process protects “rights,” but not “privileges.”
• This approach is no longer followed
• Ct will determine whether a legitimate liberty/ property interest is being taken.

Question 8

Liberty

Answer 8

• “Liberty” is not specifically defined.
• It includes more than just freedom from bodily restraints (ex. right to K & engage in gainful employment).
• A deprivation of liberty occurs if a person:
  (i) Loses significant freedom of action; or
  (ii) Is denied a freedom provided by Constit/statute.

Question 9

Examples of liberty interests include: Commitment to Mental Institution: Adults

Answer 9

• Adults are entitled to an adversary hearing b/f being indefinitely committed to a mental institution against their will.
• The state must prove basis for commitment by “clear & convincing” evidence.
• However, after a person has been acquitted of criminal charges on basis of insanity defense, acquitted D can be committed if a ct finds by a “preponderance of the evidence” the person should be committed to a mental health care facility.

Question 10

Minor Children

Answer 10

• Minor children have a substantial liberty interest in not being confined unnecessarily for medical treatment.
• Thus, they are entitled to a screening by a “neutral factfinder” b/f commitment to a mental institution.
• Mere parental consent: not enough

Question 11

Injury to Reputation

Answer 11

• Injury to reputation in itself is not a deprivation of liberty or property.
• However, if governmental acts (like statement of reasons given for termination of public employment) so injure a person’s reputation that he will have lost significant employment/associational opportunities, there is a loss of liberty.

Question 12

Exercise of Fundamental Constitutional Rights

Answer 12

• DPC protects person’s freedom to engage in activities that involve fundamental constitutional rights, (ex. right to speak & associate, right to travel, & right to vote).

Application—Gov Employee’s Freedom of Speech
- Public employee may not be discharged for engaging in constitutionally protected speech.
- If a gov employee is discharged for speech/ writing, a hearing must be held to determine if speech was protected.
- If so, employee cannot be fired.
- Ex. Ct held that teacher could not be fired for privately communicating her grievances about working conditions/ opinions concerning public issues to her employer

Question 13

Property

Answer 13

• “Property” includes more than personal belongings & realty, chattels, or money, but an abstract need/desire for (or unilateral expectation of) the benefit is not enough.
• There must be a legit claim/“entitlement” to benefit under state/federal law.
• Exs: public education, welfare benefits, continued public employment

Question 14

Public Education

Answer 14

• Property interest in public education when school attendance is required.
• Thus, a significant suspension (ex. 10 days) requires procedural due process.

Question 15

Welfare Benefits

Answer 15

• Property interest in welfare benefits if she has previously been determined to meet statutory criteria

Question 16

Continued Public Employment

Answer 16

• If there is a state statute/ordinance that creates a public employment K/some clear practice/ mutual understanding employee can be terminated only for “cause,” then there is a property interest
• But if employee holds his position only at the “will” of employer, there is no property interest in continued employment

Question 17

WHAT TYPE OF PROCESS IS REQUIRED?

Answer 17

• While all intentional governmental deprivations of life, liberty, or property require fair process, what constitutes fair process in terms of timing & scope of hearing varies according to the circumstances of the deprivation.
• Ct will weigh:
  (i) Importance of individual interest involved;
  (ii) Value of specific procedural safeguards to that interest; and
  (iii) Governmental interest in fiscal & administrative efficiency
• In all situations, Ct will probably require fair procedures & unbiased decisionmaker.
• Normally, person whose interest is being deprived should also receive notice of gov’s action & have opportunity to respond b/f termination of interest.
• However, ct may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.
• Ct has made the following rulings with regard to specific types of deprivations:

Question 18

Welfare Benefits

Answer 18

• Due process requires an evidentiary hearing prior to termination of welfare benefits.
• Need not be a judicial/quasi-judicial trial if there is adequate post-termination review; but recipient must have timely & adequate notice of reasons for proposed termination, the right to confront adverse witnesses, & the right to present his own arguments & evidence orally.
• Counsel need not be provided, but must be permitted.
• Finally, decision must be based solely on evidence mentioned at hearing & must be rendered by an impartial decisionmaker (thus disqualifying any participant in termination proposal under review)

Question 19

Disability Benefits

Answer 19

• No prior evidentiary hearing is required for termination of disability benefits, if there is prior notice to recipient, an opportunity to respond in writing, & a subsequent evidentiary hearing (w/ retroactive payment if recipient prevails).
• Rationale: Disability benefits (unlike welfare benefits) are not based on financial need & hence are not vital

Question 20

Public Employment

Answer 20

• A public employee who is subject to removal only for “cause” (& who, therefore, has a property interest in his job) generally must be given notice of charges against him that are to be basis for his job termination, & a pre-termination opportunity to respond to those charges.
• Employee does not have to be given a full, formal hearing b/f his termination, if there is a fair system of pre-termination notice, an opportunity to respond (to person making termination decision), & a subsequent evidentiary hearing regarding termination (w/ reinstatement if employee prevails).
• But note: If there is a significant reason for not keeping employee on the job, he may be suspended w/o pay & w/o opportunity to respond, if there is a prompt post-suspension hearing w/ reinstatement & back pay if employee prevails.
• Ex. police officer suspended after being arrested & formally charged w/ a felony

Question 21

Public Education—Disciplinary Suspension

Answer 21

• Although no formal evidentiary hearing is required b/f student may be temporarily suspended (for 10 days/less), due process usually requires notice of charges & opportunity to explain.
• However, if student’s presence poses a danger to persons/property/threatens to disrupt academic process, such notice & hearing may follow removal as soon as practicable.

Question 22

Corporal Punishment in Public School

Answer 22

• This may involve constitutionally protected “liberty.” - However, CL tort remedies for excessive punishment satisfy procedural due process, & a prior hearing is not required.

Question 23

Public Education—Academic Dismissal
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Answer 23

• No prior evidentiary hearing is required when a student is dismissed for “academic” deficiencies rather than for “disciplinary” reasons.
• Due process is satisfied if student is adequately informed of deficiency & given an opportunity to respond.

Question 24

Creditors’ Remedies

Answer 24

Pretrial remedies, such as attachment of property or garnishment of wages, that are merely designed to provide a plaintiff with some guarantee that there will be assets to satisfy a judgment against the defendant if the plaintiff eventually wins the case should not be issued by a court without notice to the defendant and a hearing prior to the issuance of the order. A court may issue a temporary order of this type if: (1) there are exigent circumstances that justify the order; and (2) the defendant is given a hearing after the order is issued but prior to trial. [Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Connecticut v. Doehr, 501 U.S. 1 (1991)] However, laws authorizing creditors to garnish assets, or a conditional seller to seize or sequester property, will be upheld without prior notice to the debtor if:
a.
The creditor posts a security bond;
b.
The application is made to a judge, is not conclusory, and documents narrowly confined facts susceptible of summary disposition; and
c.
Provision is made for an early hearing at which the creditor must show probable cause.

Question 25

Driver’s License

Answer 25

- State generally must give a prior hearing b/f driver’s license is suspended/terminated. - However, a post-suspension hearing satisfies due process where a statute mandates suspension of a driver’s license for refusing to take a breathalyzer test upon arrest for drunk driving

Question 26

Parental Status Litigation and Hearing: Termination of Parental Status

Answer 26

- Due process does not require appointment of counsel for indigent parents in every case in which the state seeks to terminate parental status (take children from their parents), but only when “fundamental fairness” requires appointment. - To terminate parental rights, state must prove its allegations of parental neglect/misconduct by “clear & convincing evidence

Question 27

Paternity Actions

Answer 27

- A state may allow paternity to be established in a support proceeding brought by a mother/child by a preponderance of evidence—no greater burden of proof is required by DPC. - However, due process requires state to pay for blood tests that might exculpate an indigent D in a paternity action if state is responsible for the lawsuit (suit is brought by state agency/state requires mother to bring the civil paternity suit).

Question 28

Hearings for Men Who Seek to Establish Paternity: Unmarried Father Living with Mother

Answer 28

- If father of nonmarital child is a part of a “family unit” that includes the child, the relationship between father & child will be protected by due process. - Ex. state cannot take child from father after mother dies, unless state has a fair process to determine whether the parental relationship should be severed

Question 29

Father Who Never Tried to Establish Paternity

Answer 29

- Father of a nonmarital child who has never attempted to establish a legal/personal relationship w/ child has no right to notice prior to adoption of child by other persons

Question 30

Mother Married to Another Man

Answer 30

- SC has upheld a statute that presumed that a child born during marriage was the husband’s child where the statute allowed an alleged biological father to have a hearing regarding visitation rights, but the Ct did not rule on whether a biological father could be denied visitation under these circumstances w/o a hearing.

Question 31

Detention of Citizen Enemy Combatants

Answer 31

- Due process requires that a citizen held in US as an “enemy combatant” have a meaningful opportunity to contest factual basis for his detention b/f a neutral decisionmaker. - However, due process does not forbid some tailoring of the proceedings to alleviate burdens that they may impose on Executive authority during an ongoing military conflict. - This may include accepting some use of hearsay, permitting gov rebuttable presumptions, & perhaps use of a properly authorized & constituted military tribunal.

Question 32

Notice of Adversary Proceedings

Answer 32

- When the gov seeks to use a judicial/admin process to take/terminate property interests, it must give notice to those persons whose property interests may be taken by that process. - Form of notice must be reasonably designed to insure that those persons will in fact be notified of proceedings.

Question 33

Civil Forfeitures

Answer 33

- Procedural due process limits gov’s ability to seize property allegedly subject to forfeiture (which most often occurs when gov claims the property was connected to, or was product of, criminal activity) - Absent exceptional circumstances, gov must provide owner of real property notice & opportunity for some type of hearing prior to seizing real property. - However, gov might be able to seize personal property prior to providing owner a hearing, since personal property can be hidden/destroyed

Question 34

Deprivation of Property After Criminal Conviction

Answer 34

- When facts have been established in a prior proceeding w/ appropriate procedural due process, like a criminal trial, a new hearing is not required for every deprivation of property based on previously established facts.

Question 35

DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER

Answer 35

- Due process rights are subject to waiver. - However, SC has not clearly defined the standard for determining whether someone has validly waived the right to a hearing b/f governmental deprivation of liberty/property. - Presumably, any such waiver must be voluntary. - Additionally, it is possible that a waiver will be valid only if it is made knowingly (with an understanding of the nature of the rights being waived).

Question 36

ACCESS TO COURTS—INDIGENT PLAINTIFFS

Answer 36

- There may often be a fee for gov services, including a fee for use of cts (ex. filing fee). - Whether gov must waive such fees for indigents depends on nature of rights involved. Fundamental Rights—Waiver Required - SC has required a waiver of gov fees when the imposition of a fee would deny a fundamental right to the indigent. (Fundamental rights are examined in the substantive due process & equal protection sections of this outline.)

Question 37

Nonfundamental Rights—Waiver Not Required

Answer 37

- When there is no fundamental right regulated by the imposition of a fee, gov can refuse to grant service to those persons who cannot pay required fee.