Procedural Due Process

Question 1

Due process generally

Answer 1

• Necessary procedures before depriving individuals and other “persons,” e.g., corporations, of “life, liberty, or property”
• 14th Amend. - Most provisions of the Bill of Rights applicable against states
• Both Due Process Clauses – “Substantive” component guarantees fundamental rights to all persons – “catchall”

Question 2

Procedural due process applied

Answer 2

1. Fundamental Fairness – Includes right to be notified of charges/proceedings and opportunity to be heard
   • Is threatened interest a protected one?
   • If so, what process is due?
   o Neutral decision maker
   o Intentional governmental act

2. Protected Interests
• Liberty
o Significant governmental restraint on one’s physical freedom, fundamental rights, or freedom of choice or action
• Property
o Legitimate claim of entitlement

3. Notice and hearing—amount of process due determined by three factors
   • Private interest affected
   • Value of additional safeguards, and
   • Burden (cost) of additional process
4. Court access
   • Court fees waived for indigent person if fees will deny fundamental right; counsel appointed for indigent criminal defendants