Due Process Rights - DOC by gooby

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									Due Process Generally 1) DP clause of the 14th Amendment imposes the obligation of DP on the states. 2) There is also a 5th Amendment DP clause, which applies only to the federal government. Anything that the 14 th Amend. DP would require the states to do, the 5th Amend. DP clause requires the federal government to do. 3) DP clause of the 14th Amend. provides that “no state shall make or enforce any law which shall deprive any person of life, liberty, or property, without due process of law.” 4) The Bill of Rights and the states: one of the major functions of the 14 th Amendment’s DP clause is to make the Bill of Rights applicable to the states. a) The Bill of Rights is not directly applicable to the states. The B of R as originally drafted limited only the federal government, not state or municipal governments. b) But the 14th Amend., enacted in 1868 essentially changed the rule. That amendment requires that the states not deprive anyone of life, liberty, or property without due process. Nearly all the guarantees of the Bill of Rights have been interpreted by the SC as being so important that if a state denies these rights, it has in effect taken away an aspect of liberty. c) Selective incorporation: The SC has never said that due process requires the states to honor the B of R as a whole. Instead, the Court uses an approach called selective incorporation. Under this approach, each right in the B of R is examined to see whether it is of fundamental importance. If so, that right is selectively incorporated into the meaning of due process under the 14th Amendment, and is thus made binding on the states. i) Nearly all rights incorporated: by now, nearly all rights contained in the B of R have been incorporated, one by one, into the meaning of due process. The only major B of R guarantees not incorporated: (1) The 5th Amendment’s right not to be subject to a criminal trial without a grand jury indictment. A state may begin proceedings by an information rather than indictment; and (2) The 7th Amendment’s right to a jury trial in civil cases. ii) Jot-for-jot incorporation: once a given B of R guarantee is made applicable to the states, the scope of that guarantee is interpreted the same way for the states as for the federal government. Procedural Due Process 1) Introduction: The requirement that the government act with procedural due process derives, like the requirement of substantive due process from the Due Process Clauses of the Fifth Amendment (in the case of the Federal Government) and the 14 th Amendment (in cases of the states). Both clauses prevent the government from depriving any person of “life, liberty, or property, without due process of law.” a) State rules: In the following discussion, unless otherwise stated, we are talking about the 14 th Amendment Due Process Clause, and limits on state action. However, the same rules apply to the federal government via the 5 th Amendment. b) No interest in governmental regularity per se: It is crucial to understand that the Due Process Clause does not bar the government from procedural irregularities per se. Only when life, liberty, or property are being taken is the government required to act with procedural correctness. If none of these interests is implicated by a particular government act, the government may act as arbitrarily or unfairly as it wishes (at least insofar as the Due Process Clause is concerned). Example: Suppose a state government announces that it will hire a new secretary for the head of state agency. P is superbly qualified. The state interviews P, but awards the job to X, who can’t type, but who is the daughter of a prominent local politician. Even if P can prove that the state’s action was utterly arbitrary or unfair, P has not established any violation of her procedural due process rights. The reason is that P did not have any property or liberty interest in the job opening, so there was simply no protected interest on which any procedural due process rights could hang. i) Significance: Thus most of our discussion of procedural due process will focus on the issue of just what types of interests are deemed to be ones in liberty or property such that they may not be impaired without procedural due process? (Interests in life are imperiled by government action only in relatively rare circumstances, principally capital punishment; there, the interest in life is so clearly at stake that it is obvious that the government must act with procedural correctness.) (1) Distinguished from substantive due process: the need to focus carefully on exactly what constitutes liberty and property in the procedural due process area contrasts sharply with the practice in the substantive due process area. In the latter context, it has rarely been an issue in the Supreme Court’s decisions whether liberty or property was implicated; liberty has been assumed to include just about every interest of significance to an individual. ii) Three-part historical analysis: The Supreme Court’s definition of liberty and property has undergone marked variation over the years. Our treatment divides the Court’s approach to defining these terms into three major stages: pre-1970, early 1970s and post-1972. iii) What process is due: after a comprehensive discussion of the meaning of liberty and property, we turn a much shorter analysis of a second issue: once it is determined that a particular government action implicates an interest in liberty or property what process is due? That is, must a hearing by given? Must counsel be permitted? Etc. c) Individual adjudications: One important difference between procedural due process and substantive due process is that a right to the former will only exist where the government action at issue involves an individualized determination. i) Illustration of substantive question: Suppose a state establishes broad, mechanical, requirements, which must be met before one may be licensed to practice a certain profession. These requirements will be tested solely by use of a substantive due process analysis (i.e., is a fundamental interest at stake; if not, does the rule have some rational relation to a legitimate state objective?)

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ii) Illustration of procedural question: On the other hand, if a state imposes requirements against which each individual must be carefully, and subjectively, evaluated, the need for procedural due process may also be triggered. Thus if the professional licensing procedure requires an evaluation of good moral character, the elements of procedural due process must be given. iii) Simultaneously valid and invalid: Thus a regulation may simultaneously be valid from the viewpoint of substantive due process and invalid from the perspective of procedural due process. 2) What process is due: Once a court concludes that a constitutionally protected liberty or property interest has been impaired, the issue becomes: What process is due? a) Traditional adversary model: The early 1970s saw the SC require an extremely broad set of procedural protections before the government could take away what the Court found to be a property interest. For instance, in Goldberg v. Kelly, the Court held that an evidentiary hearing was required before welfare benefits could be terminated. In Goldberg and cases following it, the Court seemed to be moving towards a view that in order for the government to take administrative action which might affect a person’s property or liberty interest, the full panoply of procedural safeguards typically imposed in court proceedings was required. i) Wide range of procedures: This approach, if followed to its logical conclusion, would have guaranteed not only the right to a hearing, but such protections as the right to call witnesses, the right to counsel, the right of cross-examination, the right of judicial review. b) Withdrawal towards a balancing test: Provisions of such a full set of guarantees any time a property or liberty interest was at issue would obviously have been extremely expensive, time-consuming, and perhaps administratively impossible. Therefore, in the late 1970s, just as the Court cut back on its notion of what constitutes a property or liberty interest, so it cut back on its interpretation of exactly what procedures are required where a liberty or property interest is at issue. i) Balancing test: The Court’s present view may be summarized as calling for use of a balancing test, in which the costs of requiring a particular set of procedures will be weighed against the benefits from the use of those procedures. ii) Illustrated in Matthews: This balancing test was first formulated in Matthews v. Eldridge. In holding that disability benefits could be terminated without a prior evidentiary hearing (a sharp contrast with the holding in Goldberg v. Kelly, the welfare benefits case), the Court listed the factors to be balanced. (1) One side of equation: On one side of the equation are: (1) the strength of the private interest that would be affected by the official action (so that the bigger the individual’s stake in the outcome, the more safeguards would be required), and (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. These two factors are presumably to be multiplied together in some way. (2) Other side of equation: On the other side of the equation is the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirement would entail. (3) Mathematical form: Thus the Matthews balancing test might be expressed in the following mathematical terms, where “A” is the additional procedural safeguard to which the individual assets that he is entitled: procedural safeguard, A, will be required if or only if [Amount at stake for individual] X [Likelihood that administrative error will be reduced by using A] < Cost to the government of granting A iii) Application in Matthews (1) Lower stake: First, unlike the welfare payments at issue in Goldberg, the disability payments were less likely to be the individual’s sole source of income, so his stake was lower than in Goldberg. (2) Value of safeguard: Second, the value of an evidentiary hearing was less than in Goldberg, because the disability issue turned upon a medical assessment of the worker’s physical or mental condition, which assessment could probably be evaluated through written documents rather than oral testimony. (3) Burden on government: Thirdly, the burden of supplying a full administrative hearing was likely to be substantial, and the cost of it may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited. (4) Conclusion: Therefore, the Court concluded, no evidentiary hearing was required before termination of disability benefits. iv) Firing of tenured employee: Where the protected interest being terminated is a public-sector job, the required procedural safeguards are similarly determined by a balancing test. In Cleveland Bd. of Ed. v. Loudermill the Court weighed a tenured employee’s interest in retaining his employment against the government’s interest in having a quick way to fire unsatisfactory employees; the Court also factored in the risk of an erroneous termination. (1) Conclusion: The Loudermill Court then concluded that although some kind of a hearing was required prior to the discharge of the plaintiff, that hearing was required to include only oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. It did not include the right to a full evidentiary hearing of the sort imposed in the welfare-benefits context in Goldberg v. Kelly. Requiring a full adversarial hearing would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.

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