Procedural Due Process

Basic Principle

The focus is on whether the government has provided adequate procedures when it takes away life, liberty, or property. Government negligence is insufficient. There must be intentional or reckless government action

Procedural Due Process in Emergencies

In emergency situations, the government is liable under due process rules only if its conduct shocks the conscience

Liberty

Not specifically defined, but includes more than just freedom from bodily restraints. Also includes at least the right to contract and the right to engage in gainful employment. A deprivation of liberty occurs if there is a loss of a significant freedom provided by the Constitution or a statute

Property

A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled, along with cases involving personal property or realty. An entitlement exists if there is a reasonable expectation that a benefit will continue.

Examples of “property” under PDP

Continued attendance at public school, welfare benefits, and in some cases, government employment

PDP Balancing Test

The type and extent of procedures required under the DPC are determined by weighing: (1) the importance of the interest to the individual; and (2) the ability of additional procedures to improve the accuracy of factfinding; against (3) the government interest, usually focused on fiscal and administrative efficiency

Presumably Universal DPC Requirements

“Fair” procedures and an unbiased decisionmaker

Notice and Hearing

Notice and hearing are usually required before the termination of a specific individual’s liberty or a property interest

Civil Forfeiture Real Property

Generally, the government must provide the owner notice and an opportunity for some type of hearing prior to seizing real property

Civil Forfeiture Personal Property

The government may be able to seize personal property prior to providing the owner a hearing, since personal property can be hidden or destroyed

Due Process and Waiver

As a general rule, due process rights are presumably subject to waiver if the waiver is voluntary and made knowingly

Indigent Plaintiffs

Government fees must be waived when the imposition of a fee would deny a fundamental right to the indigent. Fees can be imposed on indigents where nonfundamental rights are involved, such as fees for bankruptcy discharge