9. Con Law: Procedural Due Process

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rubidoux
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144035
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9. Con Law: Procedural Due Process
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2012-04-16 15:13:34
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Procedural due process con law rubidoux
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procedural due process
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  1. PROCEDURAL DUE PROCESS:
    BASIC PRINCIPLE
    The DP clauses of the 5th (applicable to the feds) and the 14th (states) amendments provide that the gov't shall not take a person's life, liberty, or property without due process of law. DP contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.

    Must be a fair, neutral decisionmaker -- Requires a judge to recuse himself when he has actual bias or when there is merely a serious risk of actual bias. A serious risk of actual bias exists when under a realistic appraisal of psychological tendencies and human weakness, the judge's interest poses such a risk of actual bias or prejudice that it must be forbidden.
  2. LIFE, LIBERTY OR PROPERTY
    First the court must determine whether a legitimate liberty or property interest is being taken.

    • Liberty includes more than just freedom from physical restraints. A deprivation of liberty occurs if a person:
    • -- loses significant freedom of action; or
    • -- is denied a freedom provided by the constitution or a state.

    • Examples of liberty interests include:
    • -- committment to a menal hospital (adults entitled to an adversary hearing and presentation of clear and convincing evidence before being indefinitely committed; children are entitled to a screening by a neutral fact-finder, mere parental consent is not enough.)
    • -- If gov't acts so injure a person's reputation that he will have lost significant employment or associational opportunities, there is a loss of liberty.
    • -- freedom to engage in activities that involve fundamental constitutional rights, such as the right to speak and associate, the right to travel, and the right to vote.

    • Examples of property include:
    • -- public education, thus a significant suspension requires procedural due process
    • -- welfare benefits for beneficiary
    • -- continued public employment
  3. WHAT PROCESS IS REQUIRED?
    GENERAL PRINCIPLES
    The court will weigh:

    1.) the importance of the individual interest involved;

    2.) the value of specific procedural safeguards to that interest; and

    3. the gov'tal interest in fiscal and administrative efficiency.

    In all cases, the court will probably require fair procedures and an unbiased decisionmaker. Also, the person whose interest is being deprived should receive notice of the gov't's action and have an opportunity to respond before termination of the interest.
  4. WHAT PROCESS IS REQUIRED?
    WELFARE BENEFITS
    Recipient must have timely and adequate notice, right to confront witnesses, right to present evidence, evidentiary hearing prior to termination, and post termination review.
  5. WHAT PROCESS IS REQUIRED?
    DISABILITY BENEFITS
    No prior evidentiary hearing required as long as there is prior notice, an opportunity to respond in writing, and a subsequent evidentiary hearing.
  6. WHAT PROCESS IS REQUIRED?
    PUBLIC EMPLOYMENT
    An employee removed for cause must be given notice of charges against him, a pre-termination opportunity to respond, and a subsequent evidentiary hearing.
  7. WHAT PROCESS IS REQUIRED?
    PUBLIC SCHOOL
    Suspension for 10 days or less: Notice of charges and opportunity to explain.

    Academic Dismissal: Notice and opportunity to respond.
  8. WHAT PROCESS IS REQUIRED?
    CREDITORS' REMEDIES
    Attachment of Property/Garnishment: notice and prior hearing OR

    A court may issue a temporary order of this type if: (1) there are exigent circumstances that justify the order; and (2) defendant is given a hearing after the order is issued but prior to trial.

    • However laws authorizing garnishment or a conditional seller to seize or sequester property will be upheld without prior notice to the debtor if:
    • -- the creditor posts a security bond;
    • -- the application is made to a judge, is not conclusory, and documents narrowly confined facts susceptible of summary disposition; and
    • -- provision is made for an early hearing at which the creditor must show probably cause.
  9. WHAT PROCESS IS REQUIRED?
    DRIVERS' LICENSE
    Prior hearing for termination or suspension unless refusal to take a breathalizer test, in which case hearing can be post.
  10. WHAT PROCESS IS REQUIRED?
    TERMINATION OF PARENTAL STATUS
    Due process requires appointment of counsel only when fundamental fairness requires the appointment. State must prove its allegations of parental neglect or misconduct by clear and convincing evidence.
  11. WHAT PROCESS IS REQUIRED?
    PATERNITY ACTIONS
    Paternity can be established for a support proceeding by a preponderance of the evidence. However, due process requires the state to pay for blood tests that might exculpate an indigent defendant in a paternity action if the state brings the suit or requires the mother to bring it.
  12. WHAT PROCESS IS REQUIRED?
    HEARINGS FOR MEN WHO SEEK TO ESTABLISH PATERNITY
    Unmarried Father Living with Mother: If the father of an illegitimate child is part of a family unit that includes the child, the relationship between the father and child will be protected by due process.

    Father Who Never Tried To Establish Paternity: The father of an illegitimate child who has never attempted to establish a legal or personal relationship with the child has no right to notice prior to the adoption of the child by other persons.

    Mother Married to Another Man: The USSC has upheld a statute that presumed that a child born during wedlock was the husband's child where the statute allowed an alleged biological father to have a hearing regarding visitation rights.
  13. WHAT PROCESS IS REQUIRED?
    DETENTION OF CITIZEN ENEMY COMBATANTS
    Due process requires that a citizen held in the US as an enemy combatant have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker. Due process does not forbid some tailoring of the proceedings to alleviate burdens that they may impose on executive authority during an ongoing military conflict. This may include accepting some use of hearsay, permitting gov't rebuttable presumptions, and perhaps use of a properly authorized and constituted military tribunal.
  14. WHAT PROCESS IS REQUIRED?
    NOTICE OF ADVERSARY PROCEEDINGS
    When the gov't seeks to use a judicial or administrative process to take or terminate property interests, it must give notice to those persons whose property interests may be taken by that process. The form of notice must be reasonably designed to insure that those persons will in fact be notified of the proceedings.
  15. DUE PROCESS RIGHTS SUBJECT TO WAIVER
    However, the USSC has not clearly defined the standard for determining whether someone has validly waived the right to a hearing before gov'tal deprivation of liberty or property. Probably must be voluntary and knowing.
  16. ACCESS TO COURTS:
    INDIGENT PLAINTIFFS
    Fundamental Rights: waiver of gov't fees when the imposition of a fee would deny a fundamental right to the indigent.

    Nonfundamental Rights: gov't can refuse to grant the service to those persons who cannot pay the required fee.

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