Procedural Due Process Flashcards
What is Substantive Due Process (SDP) - (Overview)
SDP restricts the reasons for which the gov can deprive you of life, liberty, or property.
Essentially - It critiques the adequacy of the gov’s reasons.
What is Procedural Due Process (PDP) - (Overview)
PDP means that the government has to follow procedures before it can take your life, liberty, or property. It has nothing to do with the adequacy of the gov’s reasons.
The 4th Amendment speaks more on procedural due process issues such as not being subject to unreasonable searches and seizures.
What does the text of the Constitution say about Procedural Due Process?
5th A: “No person shall be… deprived of life, liberty, or property, without due process of law”
In other words: if the feds are going to take something from an individual, must give them due process of law
14th A: “Nor shall any State deprive any person of life, liberty, or property, without due process of law;”
This now applies to the feds AND states equally. It’s textually identical but these clauses are treated identically with respect to interpretation. We interpret the 5th A interchangeably with the 14th A.
Requirements for Procedural Due Process
Requires:
1) Government Action
2) Impacting (aka Depriving) a Life, Liberty, or Property Interest.
When does a liberty interest exist?
“Liberty” denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men.” - Meyer v. Nebraska
A liberty interest is a “big deal” and not trivial.
Example: You are tapping your pen and professor says to stop. That is not a violation of a liberty interest because it is trivial/not a big deal.
Example +1: What if the pen tapper has a mental health issue where they really want to tap the pen to not be miserable? Analyze: 1) historical inquiry - do we have a history of acknowledging that being able to do this action is essential? 2) Determine level of abstraction or generalization to use. The liberals on the court will be fans of generalization with respect to drugs whereas conservatives would be fans of generalization with respect to guns.
When does a property interest exist?
This is a legitimate claim of entitlement created and defined by existing independent sources like state law (or a contract).
It exists only when the state’s discretion is “clearly limited” such that P cannot be denied the interest unless specific conditions are met.
Must have more than a unilateral expectation of the claimed interest.
Ex 1: Brown v. Michigan City featured creep in park could not point to specific source of law guaranteeing him park access after they banned him. The Park Board had discretion to ban him without violating a property interest.
Ex 2: Prof worked at university and complained. He was on contract. After contract was expired, he was not renewed. If he had been fired DURING contract, that would have brought up PDP issue, but that didn’t happen here. There was no PDP violation even if their reason was petty.
Exam questions would have to point to things like a statute that says “the gov SHALL ISSUE to anyone who meets these criteria…” which matters because SHALL ISSUE is an entitlement that does not leave the gov discretion. If the gov RETAINS DISCRETION, there isn’t a PDP violation for lack of enforcement.
Ex 3: There is no property interest in the enforcement of a restraining order because police can only choose to police so many areas at a time and cannot constantly enforce the order. The gov RETAINS DISCRETION.
Government Action Requirement for a PDP Claim
General Rule: The gov must take an action to have a PDP claim. That action must be in a “non-legislative capacity”, because if the gov passes a law, then there was process involved in passing it which satisfies Due Process. That process comes in the form of who you vote for, campaign for, lobby for, give money to, etc.
Example: We can all drive by age 16 with a license. But if they raised the minimum license age to 30, and now something that we could do is no longer doable, that still does NOT violate Due Process because the legislative process IS giving due process.
What does it mean for the gov to “deprive” something?
It means that the gov acts with intent, and MAYBE recklessness, but not mere negligence.
Ex 1: Prisoner tripped on a pillow dropped by a guard and broke his leg. Guard was negligent but not intentional, no PDP violation. Just think: how can the gov give you due process before an accident? How would you give notice of an accident beforehand?
Ex 2: Gov decides to fire an at-will employee on the basis of race or sex. This is not a violation of PDP because PDP does not care about the adequacy of the gov’s reasons. This would likely still be a constitutional violation though (EP).
Ex 3: Roth case - State university fired professor after his 1-year contract expires. There was no PDP violation because he had no property interest after his term had expired.
Shifting Rigor of Procedural Due Process Depends on - Matthews balancing test
PDP Requirements may change depending on the:
1) Private Interest affected;
2) The risk of erroneous deprivation under the contested procedure, and probable value of additional or substitute safeguard; and
3) The government’s interest burdened by those safeguards.
Procedural due process Rationale -
PDP creates an “arena and opportunity for persuasion”.
Basically it’s to prevent the government from abusing its power without justification. That way you will have chances to persuade the decisionmaker. But even if you get 10 appeals, if you are still sentenced to death in the end because you like pineapple on pizza, that doesn’t violate PDP.
EX: of PDP - Dean Washburn expels you without due process…
Suppose Dean Washburn expels you tomorrow. You probably have a property or liberty right to finish the fall semester. From a due process perspective, you want NOTICE, because if he never even told you you’ve been expelled, that would violate your dignity.
Additionally, if you get expelled, you also want to know WHY. Even if the reason is because you like pineapple on pizza, the PDP cannot help you fight the adequacy of his reason.
The Historic Role of Stigma as Procedural Due Process - Wisconsin v. Constantineau
Stigma - state-caused stigmatic harm i.e., everyone found out you went to a lonny bin because of government action.
Wisconsin v. Constantineau - denied alcohol due to public nuisance – for reputational harm by the government, then the government must give the plaintiff due process.
Is stigma irrelevant to the Matthews balancing test?
Stigma is not irrelevant in the Matthews balancing test. You can “put it on the scale” as a personal interest.
The Current Role of Stigma as Procedural Due Process - Paul v. Davis
General Rule: Not every defamation by a public official is a deprivation of liberty within the meaning of the 5th or 14th A. Reputation alone is not liberty or property.
Holding: Police put out signs to watch for known shoplifter – the stigma plus doctrine, in which they distinguish Wisconsin against stigma, the government owes no process, unless they also take something else away (property or liberty).
Essentially:
Paul v. Davis changed reputational case to stigma plus some other interest.
Evolution of Stigma Plus Doctrine - Paul v. Davis
Stigma Plus Doctrine = must show STIGMA PLUS A DEPRIVATION of ANOTHER INTEREST.
If you’re claiming reputational harm, you are owed no process if all your claim is about is stigma. The gov only owes you process if they’re taking away a liberty or property interest on top of the reputation/stigma. Reputation is not a free-standing property or liberty interest.
