Due Process Clause

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Procedural Due Process

Refers to the procedures the government must follow if deprives a person of life, liberty, or property. (2 Part Test - Deprivation / Procedures)
1. Has there been a DEPRIVATION of life, liberty or property?
a. Liberty - A deprivation of Liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
i. Examples:
1. Prisoners rarely have liberty interests
2. Institutionalize of child by parent requires screening by neutral fact finder
3. Harm to reputation alone is NOT a deprivation of liberty
4. Except in an emergency before an adult can be institutionalized there must notice and a hearing
b. Property - A deprivation of Property occurs if there is an Entitlement and that entitlement is NOT fulfilled

Procedural Due Process

i. Entitlement - reasonable expectation to continue to receive a benefit (This is the new test)
1. Attendance at public school, welfare benefits, government employment, personal belongings, and realty.
c. Intentional Deprivation - Government negligence is not sufficient for a deprivation of due process. Generally there must be intentional government action or at least reckless action for liability to exist.
i. Emergency - However, in emergency situations, the government is liable under due process only if its conduct "shocks the conscience." (i.e. high speed chase not)
ii. Waiver - Individuals may expressly waive due process.

If there IS a Deprivation, What procedures are required?

a. Balancing Test
i. Individuals Interest
ii. Value of Safeguards - The ability of additional procedures to increase the accuracy of the fact-finding
iii. Government Interest (Efficiency and saving money)

3. Procedure Requirements:
a. Prior Notice and Prior Hearing
i. Welfare Benefits terminated
ii. Resident aliens being deported
iii. Before rights to a child are permanently removed
iv. Adult Commitment to Mental Institution
2. Child - Only a screening by a neutral fact finder is required for a parent to institutionalize a child
v. Termination of a parent's custody rights
vi. Real property forfeiture (government seizure)
1. Except in emergency circumstances
2. Government can seize property in an illegal activity even if it has an innocent owner

Procedure Requirements:

b. Prior Notice and a Post Hearing
i. Social Security/Disability benefits terminated
ii. Public Employment (Tenure / Termination)
c. Subsequent Notice and a Subsequent Hearing
i. American citizen captured in foreign war and held as enemy combatant in U.S. (trial, jury, counsel)
ii. Personal Property forfeiture
3. Exception - Government may seize property from an innocent owner (co-owner) if used in criminal activity
d. Notice and chance to explain
i. Public education discipline / dismissal - notice of charges and chance to explain
1. corporate punishment schools - NO due process required
e. Instructions to the jury and judicial review
i. Punitive damage awards - grossly excessive punitive damages are a violation of due process

SUBSTANTIVE Due Process - (5th amendment)

- Determines whether the government has a justified reason for taking away a person's life, liberty or property. (Applies to the states via the 14th Amendment)
i. Non-Fundamental Rights - Constitution provides minimal protection for economic liberties (Non-fundamental rights)
1. Rational basis test is used for laws affecting economic rights
2. Economic Rights - The right to practice a trade or profession

SUBSTANTIVE Due Process - (5th amendment)

ii. Fundamental Rights - Apply Strict Scrutiny to the following Rights:
1. PRIVACY (Strict Scrutiny)
a. Marry
b. Procreate
c. Custody of One's Children - State may create irrebuttable presumption that married woman's husband is biological father
d. Keep the Family Together - Includes extended family, but must be actually related (cousins, grandma)
e. Control the upbringing of one's children
ii. Note - NO right to grandparent visitation over parents objections
f. Purchase and Use Contraceptives
g. Freedom to receive Obscene Reading Material - (Except child porno)
h. Engage in Private Homosexual Activity

Refuse Medical Treatment

i. Competent adults have the right to refuse medical treatment, even in life-saving situations
ii. State may require clear and convincing evidence that a person wanted treatment terminated before it is ended
iii. State MAY prevent family members from terminating treatment for another
iv. NO constitutional right to physician-assisted suicide

Abortion (NO longer Strict Scrutiny)

i. Prior to viability (fetus survival outside womb) - States may NOT prohibit abortions, but may regulate abortions so long as they do not create an UNDUE BURDEN on the ability to obtain an abortion.
ii. NOT and undue burden
2. 24 hr waiting period
3. Performed by licensed physicians
4. Prohibition of "partial birth abortions"
5. Parental notice and consent for unmarried minors
a. Alternative - Minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interest or that she is mature enough to decide for herself

Abortion (NO longer Strict Scrutiny)

iii. After Viability - States MAY prohibit unless necessary to protect the woman's life or health
iv. Note - Government has NO duty to subsidize abortions or provide abortions in public hospitals
v. Note - Spousal consent and notification laws are unconstitutional

TRAVEL (Strict Scrutiny)

2. 2nd Amendment - Right to bear arms for protection (no level of scrutiny identified)

3. TRAVEL (Strict Scrutiny)
a. Laws that prevent people from moving into a state
b. Durational residency requirements for receiving benefits
vi. 1 year residency requirement to get divorced
c. Note - Restrictions on foreign travel need meet only the rational basis test

VOTE (Strict Scrutiny)

a. Laws that DENY some citizens the right to vote
i. Durational residency requirements up to 50 days are valid
ii. NOT property ownership as a qualification to vote
b. The use of race in drawing election district lines
c. Counting uncounted votes without standards in presidential elections violates equal protection
d. One-person, One-vote must be met for all state and local elections
i. Exception - Appointed officials, officials elected at-large, or special purpose elections (i.e. water district) do not have to comply with one person one vote requirement.

5. EDUCATION - NO fundamental right to education (Rational Basis Test)

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