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Conlaw II > Procedural Due Process > Flashcards

Procedural Due Process Flashcards

1
Q

basic principle

PROCEDURAL DP

A

= before the government may deprive a person of liberty or property, the gov must give the person notice of termination (including reasons for termination) and some form of hearing

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2
Q

2 issues

BASIC PRINCIPLE

A

all procedural DP problems can be broken down into 2 issues:

  1. has there been an deprivation of life, liberty, or property?
  2. if so, what procedures are required?
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3
Q

definition

DEPRIVATION OF LIBERTY

A

= occurs if there a loss of significant freedom provided by constitution or statute

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4
Q

liberty

DEPRIVATION OF LIBERTY

A

= freedom from confinement

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5
Q

harm to reputation

DEPRIVATION OF LIBERTY

A

= by itself not a loss of liberty

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6
Q

institutionalization of adult

DEPRIVATION OF LIBERTY

A

except in an emergency, before an adult can be institutionalized, must be notice and a hearing

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7
Q

institutionalization of child

DEPRIVATION OF LIBERTY

A

when a parent institutionalizes a child, must only be a screening by neutral fact-finder

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8
Q

definition

DEPRIVATION OF PROPERTY

A

= occurs if a person has an entitlement and that entitlement is not fulfilled

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9
Q

property

DEPRIVATION OF PROPERTY

A

property exists if there is an entitlement

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10
Q

entitlement

DEPRIVATION OF PROPERTY

A

entitlement exists if there is a reasonable expectation to continue receipt of a benefit

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11
Q

negligent deprivation

DEPRIVATION OF RIGHT

A

= generally insufficient to state a claim of DP (DP requires intentional or at least reckless gov action)

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12
Q

intentional deprivation

DEPRIVATION OF RIGHT

A

in emergency situations, gov can be held liable ONLY IF the officer’s conduct shocks the conscience

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13
Q

protection

DEPRIVATION OF RIGHT

A
  • gov’s failure to protect people from privately inflicted harms does not violate DP
  • gov only has duty to provide protection IF
    1. the gov created the danger OR
    2. the person is in gov custody
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14
Q

mathews v. eldridge test

REQUIRED PROCEDURES

A

3-part balancing test for what procedures are required when deprived of life/liberty/property

i. importance of the interest to the individual
ii. ability of additional procedures to increase the accuracy of the factfinding
iii. government’s interest (usually in efficiency)

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15
Q

public education - corporal punishment

REQUIRED PROCEDURES

A

doesn’t require any DP

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16
Q

punitive damages

REQUIRED PROCEDURES

A
  1. punitive damages require instructions to the jury and judicial review
  2. grossly excessive punitive damages violate DP
17
Q

indigent plaintiffs

ACCESS TO COURTS

A
  • may often be a fee for government services, including a fee for use of courts
  • whether the government must waive such fees for indigents depends on the nature of the rights involved
18
Q

fundamental rights - DP waiver

ACCESS TO COURTS

A

waiver required

= SC has required waiver of gov fees when the imposition of a fee would deny a fundamental right to the indigent

19
Q

nonfundamental rights - DP waiver

ACCESS TO COURTS

A

waiver not required
= when there is no fundamental right regulated by imposition of fee, gov can refuse to grant the service to those persons who cannot pay

20
Q

fundamental rights - examples

ACCESS TO COURTS

A
  • inability to pay marriage license fee or divorce court filing fee
  • inability of candidate for electoral office to pay filing fee to run
  • inability to pay cost of transcript to appeal termination of parental rights
21
Q

nonfundamental rights - examples

ACCESS TO COURTS

A
  • fed gov can refuse to grant access to bankruptcy courts to persons who cannot pay filing fee (no fundamental right to receive a bankruptcy discharge from debts)
  • state can limit judicial review of welfare termination hearing to those who pay $25 fee
22
Q

movement of inmate

REQUIRED PROCEDURES

A
  • cannot be moved to mental institutional w/o DP
  • can be moved cross-country w/o DP
  • can be put in solitary confinement w/o DP
23
Q

alien entering country

REQUIRED PROCEDURES

A

can be prevented from entering w/o DP when national security is at risk

24
Q

neutral decisionmaker

REQUIRED PROCEDURES

A

DP requires recusal when probability of ACTUAL bias on the part of the judge is TOO HIGH to be CONSTITUTIONALLY TOLERABLE

25
Q

examples of property

DEPRIVATION OF PROPERTY

A
  1. gov job
  2. gov benefits
  3. gov license
26
Q

welfare benefits

REQUIRED PROCEDURES

A

notice and evidentiary hearing prior to termination

27
Q

gov jobs

REQUIRED PROCEDURES

A

pre-termination opp to respond, post-termination evidentiary hearing unless the job was probationary or short-term

28
Q

school suspension for < 10 days

REQUIRED PROCEDURES

A

notice and opp to explain

29
Q

prejudgment attachment

REQUIRED PROCEDURES

A

preferably prejudgment hearing, post-judgement hearing suffices in emergencies with a bond

30
Q

driver’s license suspension

REQUIRED PROCEDURES

A

pre-suspension hearing except for refusal to take breathalyzer

31
Q

termination of parental rights

REQUIRED PROCEDURES

A

pre-termination notice and hearing with clear and convincing evidence standard

32
Q

termination of business license

REQUIRED PROCEDURES

A

pre-termination notice and some form of fair hearing

33
Q

deprivation of gov benefits

REQUIRED PROCEDURES

A

generally, informal hearing before neutral decisionmaker is sufficient

Conlaw II (7 decks)

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