Procedural Due Process

Question 1

When asserting compliance with procedural due process what three questions have to be considered?

Answer 1

First, has there been a deprivation; (2) Second, is there a deprivation of life, liberty, or property? (3) Third, is the deprivation without due process of law?

Question 2

Is there a deprivation?

Answer 2

In most cases, a deprivation is evident. A deprivation can occur when there is deliberate
indifference, recklessness, or an intentional act on the part of the government to deprive.
Negligence is not enough. In cases of an emergency, it must be conscious shocking, and there is
no affirmative duty on the part of the government to protect against private harm unless there is a
special relationship like that of a prisoner.

Question 3

What is a rights, privilege distinction?

Answer 3

To establish a property right, it is necessary to determine whether there is a reasonable expectation to continue reciept of the benefits.

Question 4

What test do you apply when you establish deprivation of a property right and that the procedures were appropriate?

Answer 4

This requires assessment through the Matthews test, which examines: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such an interest through the procedures used, and probable value, if any of the additional procedural safeguards; (3) the governments interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Each element must be addressed.

simple test:

this is to determine is adequate procedures such a notice, hearing, appeal and right to counsel is present. (1) the private interest; (2) public interest; (3) access benefits of additional procedures combined with the risk of erroneous deprivation of a legitimate property or liberty interest if additional procedures are not offered.

Question 5

simple test deprivation

Answer 5

There must be a deprivation; of life, liberty, or property that was without due process of law.

In most cases deprivation is evident.

Question 6

For negligence to constitute a deprivation it must meet?

Answer 6

the shock the conscience test

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Question 7

For life, liberty or property issue

Answer 7

if a state argues that it is not a property interest because they did not own it, then Board of Regents v. Roth holds that property interest under PDP extends well beyond ownership of real estate, chattels, or money.

This includes notice, right to hearing, right to counsel, right to be heard before a neutral decision maker, and right to appeal. When considering whether a government’s
procedures were appropriate, courts utilize the Mathews test: (1) the private interest affected by
official action; (2) the risk of erroneous deprivation of such right under the procedures used and
the probable value, if any, of any additional or substitute measures; and (3) the government
interest, including the function involved and the fiscal and administrative burdens that such
additional or substitute measures would entail.

Here, there is an argument for deprivation of liberty in the form of reputation. Liberty interests
consider the importance of the right and the likelihood of the expectation of that right. Here,
Legend may make a claim for deprivation of her reputation because her name and picture was
displayed on a billboard for driving under the influence of alcohol. Courts have found that
reputational harm is not a liberty interest unless the government is causing the harm and if it is
coupled with another deprivation, such as loss of the right to public education. The SC has indicated that reputation alone, apart from more tangible interests such as employment, does no implicate any liberty or property interest sufficient to invoke the procedural protection of the Due Process Clause.

Here, it does not appear that there is any other loss of a right. Therefore, it is likely Legend’s claim for deprivation of reputation stops here.