Procedural Due Process

Question 1

What is the primary rule for PDP?

Answer 1

PDP requires the government to use fair process before intentionally depriving a person of life, liberty, or property.

Question 2

What is encompassed in a liberty interest?

Answer 2

Liberty interests include physical liberty as well as intangible liberties such as the right to drive, raise a family, etc. But this does not include entitlement to loans for occupational purposes as there is no liberty to enjoy a particular occupation

Question 3

What is a property interest?

Answer 3

A property interest include real property, personal property, public education, welfare benefits, disability benefits, government employment with a “legitimate claim of entitlement”

Question 4

What process is due for judicial proceedings?

Answer 4

A right to a hearing, counsel, to call witnesses, a fair trial, and appeal

Question 5

What process is due for nonjudicial proceedings?

Answer 5

Courts use a balancing test to weigh:

(1) the individual’s interest in the right that will be affected by the government
(2) the added value of the procedural safeguards used and the possibility of substitute procedural safeguards
(3) the government’s interest in fiscal and administrative efficiency
(4) Fair process usually requires notice of the government action and an opportunity to be heard before termination of the interest

Question 6

What is the PDP approach?

Answer 6

(1) Is there a standing issue?
(2) Is there state action?
(3) Is there individuated harm? (If harm is directed at a group, think EPC)
(4) Has life, liberty, or property been taken?
(5) Was process “due” before the taking, and if so, what process?