Procedural Due Process

Text Assist for Procedural Due Process Flowchart

The Constitution grants certain rights to the people and places certain limitations on the government’s power. Most of these rights and restraints are procedural. For example:
1) You are entitled to a fair trial before going to jail;
2) You may not be compelled to be a witness against yourself;
3) Your home may not be searched unless the police first obtain a search warrant.

The Constitution does not forbid the government from putting you in jail or searching your house, it just must abide by certain procedures first.

Historian’s trace Procedural Due Process Clauses of the 5th and 14th Amendments to the English Magna Carta, which provided "guaranties against the [King’s] oppressions and usurpations of royal prerogative." The document required the King, his consuls and his agents to respect "the law of the land." Like our modern Due Process Clauses, the Magna Carta protected the public against the government’s arbitrary and random acts.

Is a "liberty" or "property" interest at stake?
The critical point in Procedural Due Process is that the individual must have been deprived of a recognized liberty or property interest.

State law determines whether or not a liberty/property interest exists. Federal law defines what process is due. According to the Supreme Court, "property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

Rights v. Privilege
The distinction between these two concepts has eroded considerably since the beginning of the century. No longer is the government allowed to condition the receipt of a government benefit (e.g. welfare, government job) upon the recipient’s agreement to forego the exercise of a constitutional right. Such a conditional on a state benefit would be an "unconstitutional condition." For example, it is true that the state is not required to give you a job; a job is a privilege, not a right. And while the "old law" allowed the state to take away this "privilege" for any reason, no longer does the state have such free reign. The state may not condition an individual’s employment on their agreement to give up a constitutional right (such as the freedom to speak, vote, marry, travel, etc.). To illustrate further, a provision that subsidized housing would go only to those who refrained from speaking out against the federal government would be an "unconstitutional condition."

See the Unconstitutional Conditions flow chart.

Textual (constitutional) interests:

Procedural Due Process Effecting the Judicial Process Includes:
1) Criminal Procedure provisions in the Bill of Rights
2) 7th Amendment
3) Right to Appeal

Procedural Due Process Effecting the Legislative Process Includes:
1) Uniformity of laws - Congress is prohibited from passing bills of attainer (Art. I, Sec. 9, cl. 3), as are the states. Bills of attainer are laws that name specific persons or groups and prescribe punishments for them. It is like a trial by legislature and is forbidden.
2) Prospective - Also forbidden are ex post facto (retroactive) laws. An ex post facto law makes an act that was lawful last week suddenly unlawful. One can see how this is unfair. The individual who performed the act last week had no notice of its illegality. Nor can Congress or the state legislatures pass a law changing the penalty for a previous act or alter the rules of evidence. This restriction is so basic to fairness that Justice Chase commented that "Congress and the states would be powerless [to pass such laws] even if not expressly forbidden by the Constitution." Calder v. Bull, __ U.S. __ (1798).
3) Legislative Regularity - Legislation must be dealt with openly and properly (Art I.). For example, Art. 1, section 5 requires that votes be recorded and published in a journal and section 6 specifies rules of ethics for the legislature to follow.

Procedural Due Process Effecting the Executive/Administrative Process Includes:
1) Purpose of a hearing - The purposes of a hearing are accuracy (to prevent a mistake in punishment), Participation (to allow the individual to defend himself), and Discovery (test the government’s motives for prosecution).
2) Entitlement to a hearing - Must be a deprivation of a liberty or property interest. The more individualized the sanction, the more likely than an individual hearing will be required.
3) Kind of hearing - Depends on severity of deprivation.
4) Timing of hearing - Balance hardships with interests.
5) Scope of hearing - Court must provide as much process as is due.

Recognized common law interests:
Justice Rehnquist expressed his deference to existing common law in Garcia v. San Antonio MTA, 469 U.S. 528 (1985) stating: "any departure from the doctrine of stare decisis demands special justification. . . . The stability of judicial decision, and with it respect for the authority of this Court, are not served by the precipitous overruling of multiple precedents."

State created (statutory) interests:
State law determines whether or not a liberty/property interest exists. Federal law defines what process is due. According to the Supreme Court, "property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).

As long as the procedures that the state provides creating the expectation of liberty or property interest are complied with, there has been no deprivation of liberty or property. In other words, the Due Process Clause requires the state to comply only with the procedures it said it would comply with.

Has the state (through some affirmative action or positive law) generated a reasonable expectation that the interest will be protected?
Since 1972, the Supreme Court has interpreted "life, liberty, and property" narrowly, making the more accurate phrase: "Life, recognized liberty interests, and property entitlements (as opposed to mere expectations)."

Liberty interests:
The Supreme Court now interprets "life, liberty, and property" narrowly, making the more accurate phrase: "Life, recognized liberty interests, and property entitlements (as opposed to mere expectations)"

No liberty interest found by the Court:
1) Out-of-state lawyer has no liberty or property interest when he seeks to represent defendants in a criminal trial. Because the court found no liberty or property interest, the state is free to deny the "privilege" without a hearing and, therefore, on an arbitrary basis. Leis v. Flint, 439 U.S. 438 (1979).

Property interests:
The Supreme Court now interprets "life, liberty, and property" narrowly, making the more accurate phrase: "Life, recognized liberty interests, and property entitlements (as opposed to mere expectations)"

No property interest found by the Court:
1) Out-of-state lawyer has no liberty or property interest when he seeks to represent defendants in a criminal trial. Because the court found no liberty or property interest, the state is free to deny the "privilege" without a hearing and, therefore, on an arbitrary basis. Leis v. Flint, 439 U.S. 438 (1979).

Has the state "deprived" the interest through executive or administrative action?
The Supreme Court stated in Matthews v. Eldridge, 424 U.S. 319 (1976), a case regarding termination of Social Security benefits, that "due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedure protections as the particular situation demands."

Elements of the adversary process which may be required as part of the "due process" which must be afforded to an individual when the government deprives him of life, liberty, or property. The essential elements are:
1) Government action;
2) A neutral decision maker;
3) An opportunity to make an oral presentation to the decision-maker;
4) An opportunity to present evidence or witnesses to the decision-maker;
5) A chance to confront and cross-examine opposing witnesses or evidence;
6) The right to have an attorney present the individual’s case to the decision-maker;
7) A decision based on the record with a statement of reasons for the decision.

Additionally, there are six other safeguards that apply to criminal trials:
1) The right to compulsory process of witnesses;
2) The right to pre-trial discovery of evidence;
3) A public hearing;
4) A transcript of the proceeding;
5) A jury trial;
6) A burden of proof on the government greater than a preponderance of the evidence.

Has the state provided the claimant an opportunity to be heard regarding the deprivation?

Procedural Due Process Effecting the Executive/Administrative Process Includes:
1) Purpose of a hearing - The purposes of a hearing are accuracy (to prevent a mistake in punishment), Participation (to allow the individual to defend himself), and Discovery (test the government’s motives for prosecution).
2) Entitlement to a hearing - Must be a deprivation of a liberty or property interest. The more individualized the sanction, the more likely than an individual hearing will be required.
3) Kind of hearing - Depends on severity of deprivation.
4) Timing of hearing - Balance hardships with interests.
5) Scope of hearing - Court must provide as much process as is due.

The nature of the hearing must be comensurate with the interest affected, taking into account the state’s administrative needs:

All courts must now employ the Matthews v. Eldridge balancing test to determine the type of procedures that are required by due process when a governmental action would deprive an individual of a constitutionally protected liberty or property interest. On the individual’s side, a court must assess two factors:
1) The importance of the individual liberty or property interest at stake;
2) The extent to which the requested procedure may reduce the possibility of erroneous decision-making.

On the other side of the balancing scale, the court must assess the governmental interest in avoiding the increases administrative and fiscal burdens which result from increased procedural requirements.

Failure to provide timely and adequate procedure violates Due Process Clause:
Keep in mind that what is constitutionally required is a procedure, not necessarily a hearing. However, the more individualized the sanction, the more likely than an individual hearing will be required.

Elements of the adversary process which may be required as part of the "due process" which must be afforded to an individual when the government deprives him of life, liberty, or property. The essential elements are:
1) Government action;
2) A neutral decision maker;
3) An opportunity to make an oral presentation to the decision-maker;
4) An opportunity to present evidence or witnesses to the decision-maker;
5) A chance to confront and cross-examine opposing witnesses or evidence;
6) The right to have an attorney present the individual’s case to the decision-maker;
7) A decision based on the record with a statement of reasons for the decision.

Additionally, there are six other safeguards that apply to criminal trials:
1) The right to compulsory process of witnesses;
2) The right to pre-trial discovery of evidence;
3) A public hearing;
4) A transcript of the proceeding;
5) A jury trial;
6) A burden of proof on the government greater than a preponderance of the evidence.

Note: Deprivations despite a fair hearing do not violate PROCEDURAL Due Process; perhaps you should consider SUBSTANTIVE Due Process:
For an analysis of Substantive Due Process, see the following flow charts: Substantive Due Process, Incorporation of the Bill of Rights, Lochner v. New York, Economic Due Process.

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