Module 10 - Procedural Due Process

What is the focus of procedural due process claims?

Whether the government has provided adequate procedures when it takes away life, liberty, or property.

Is government negligence sufficient for a procedural due process claim?

No, government negligence is insufficient. There must be intentional or reckless government action.

Can the government be held liable for failing to protect people from privately inflicted harm under procedural due process?

No, the government is generally not liable for failing to protect against privately inflicted harms.

What standard applies in emergency situations for government liability under due process?

The government's conduct must "shock the conscience" for liability to arise.

What are the two questions to ask in a procedural due process issue?

1) Has there been a deprivation of life, liberty, or property?

2) What procedures are required?

How is "liberty" defined in the context of procedural due process?

It includes more than freedom from bodily restraint, such as the right to contract and engage in gainful employment.

What constitutes a deprivation of liberty under procedural due process?

The loss of a significant freedom provided by the Constitution or statute.

What does "property" include under procedural due process?

Property includes more than personal belongings and realty; an entitlement exists if there is a reasonable expectation that a benefit will continue.

What are some examples of property interests under procedural due process?

Continued attendance at public school, welfare benefits, and certain government employment positions.

What is the three-part balancing test used to determine the required procedures in procedural due process?

1) The importance of the interest to the individual,

2) The ability of additional procedures to improve accuracy,

3) The government's interest in fiscal and administrative efficiency.

What procedures are generally required before terminating a liberty or property interest?

Fair procedures, an unbiased decisionmaker, notice, and a chance to respond.

What procedural rights are required before welfare benefits are terminated?

Notice and a hearing.

What is required before terminating Social Security disability benefits?

A post-termination hearing is sufficient.

What rights must be provided to a U.S. citizen detained as an enemy combatant?

Notice of charges, representation by a lawyer, and a meaningful factual hearing

What process is required for the seizure of personal property in civil forfeiture cases?

Personal property can be seized prior to a hearing, as it can be hidden or destroyed.

Are due process rights subject to waiver?

Yes, due process rights can be waived if the waiver is voluntary and made knowingly.

When must government fees be waived for indigent plaintiffs?

When imposing the fee would deny a fundamental right, such as privacy or voting rights.

What is the best argument in a suit to defeat the revocation of a retail license for selling milk in pints, in violation of state law?

The action of the state agency was a denial of procedural due process (Answer: C).

Examples of Due Process

- Before welfare benefits are terminated, there must be notice and a hearing

- When Social Security disability benefits are terminated, there need be only a post-termination hearing

- Before a school can discipline a student, there must be notice of the charges and an opportunity to explain

Before a parent's right to custody of a child can be permanently terminated, there must be notice and a hearing

- Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness

For an American citizen to be detained as an enemy combatant, there must be due process (specifically, notice of the charges against him, representation by a lawyer, and a meaningful factual hearing)

- Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing