Procedural Due Process

(the right to be heard)

What is procedural due process? (return to top)

  1. Basic function is to provide "an opportunity to be heard. . .at a meaningful time and a meaningful place," promoting fairness in dispute resolution - Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)
  2. The right to be heard, not the right to prevail
  3. Courts don't remake substantive policy, but supervise procedures through which laws are enforced on individuals

When does due process apply? (return to top)

  1. By terms of 5th and 14th amendments, deprivation of life, liberty, or property activates due process guarantees
  2. Liberty interests = "those privileges long recognized as essential to the orderly pursuit of happiness by free men" - Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 2399, 91 L.Ed.2d (1923)
  3. Property interest = "a legitimate claim of entitlement" to a benefit - Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)
  4. However, even deprivations of liberty or property can be effected without hearing in certain emergency situations

Entitlement doctrine (return to top)

  1. Serves three purposes:
    1. Provide a means for determining which interests warrant protection safeguards
    2. Protect parties who change their position in justified reliance on official action
    3. Maximize state control over the creation of protected interests
  2. No hearing is necessary unless person can legitimately claim entitlement to benefit
  3. Distinction between termination of benefits and denial of initial application
    1. Applicant for admission to state university unable to show entitlement
    2. Enrolled student is entitled to due process - Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961)
    3. School student entitled to hearing for suspension even though state statute authorizes suspension - Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)

Public employment (return to top)

  1. Public employment incorporates aspects of both liberty and property
  2. Roth (1972) - instructor hired on one-year contract had no legitimate entitlement for employment beyond that year
  3. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) - instructor who worked ten years had "de facto" tenure; entitled to hearing
  4. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) - pretermination hearing need only:
    1. Afford employee an opportunity to present his side of the story
    2. Determine whether there are reasonable ground to believe that the charges against the employee are true and support the proposed action

What kind of process is due? (return to top)

  1. Most cases mandate some kind of hearing and procedural protections as the situation demands
  2. Goss v. Lopez required public school student threatened with suspension rudimentary process of notice of charges against him and opportunity to present his side of story
  3. Academic dismissals do not require a hearing before the school makes a decision [Regents of the University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) and Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978)]
  4. In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), welfare recipient entitled to full evidentiary hearing before benefits terminated:
    1. Timely notice of reasons for termination
    2. Opportunity to confront adverse witnesses and present evidence and arguments
    3. Representation by retained counsel, if desired
    4. Impartial decision maker
    5. Ruling based on evidence presented at hearing
    6. Statement of reasons for ruling
  5. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) - modifies Goldberg; allows termination of social security disability benefits on basis of written reports without prior evidentiary hearing
    1. Signals that deprivation of property or liberty interests may be permitted to precede full hearing if minimal safeguards followed
  6. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) - permits automatic suspension of driver's license for refusal to take breathalyzer test if prompt post-suspension hearing is available

Irrefutable presumptions (return to top)

  1. Classifications unconstitutional because they deny the individual the right to be heard on the validity of the presumption as applied to them
  2. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) - Connecticut rule that treated as nonresidents for tuition purposes during the entire period of university enrollment:
    1. All unmarried students whose legal address for any part of the year preceding their application for admission was outside of Connecticut
    2. All married students whose legal address at the time of application was outside of Connecticut
    3. Due process requires that individual be allowed to present evidence that he is a bonafide resident
  3. Cleveland Board of Education v. LaFluer, 4414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52, 67 O.O.2d 126 (1974) - all women in fifth month of pregnancy must quit their teaching positions