Procedural Due Process
The same Due Process Clause which gives rise to substantive due process claims involving fundamental and non-fundamental rights also gives rise to another type of claim – the procedural due process claim.
As with substantive due process, government action is required for there to be a cause of action. Unlike substantive due process, procedural due process cases do not focus on whether a liberty right or an economic right is at stake. Any deprivation of life, liberty, or property will be subjected to the same level of scrutiny, although as we shall see, the nature of the right involved does affect the outcome.
Deprivations of Liberty
Whenever a state deprives a person of some significant freedom provided by statute or granted under the Constitution, there is a deprivation of liberty. Among the list of obvious liberties we can include freedom of speech, freedom of religion, freedom of association, etc. Some less obvious examples include the institutionalization of an adult, except in case of emergency (requires notice and a hearing) and the institutionalization of a child by a parent (requires a “screening” by a neutral fact finder). It is also important to note that, for procedural due process purposes, prisoners rarely have “liberty interests.”
EXAMPLE: Fred is jailed for felony possession of narcotics. While in prison, he is far from the model prisoner, and is eventually placed in isolation. Fred sues because his freedom of association has been taken from him without due process. For procedural due process purposes, there has been no deprivation of a liberty interest given Fred’s status as a prisoner.
Deprivations of Property
For procedural due process purposes, a deprivation of property occurs when a person has an entitlement and that entitlement is not fulfilled. One of the less obvious examples here is if you had a contract to work for the state of Massahampshire for 1 year, procedural due process concerns must be met for early termination, as there is a property interest in the entitlements stemming from the contract.
Note that whether the concern is a deprivation of liberty or a deprivation of property, mere negligence is insufficient to impose government liability.
Also, the failure to protect individuals from privately inflicted deprivations does not expose the government to liability, unless the danger was created by the government in the first place. There must be at least recklessness or intentional action before a procedural due process claim will arise. In emergency situations, there will be no government liability unless the government action is so horrid as to “shock the conscience.”
EXAMPLE: Ben’s Building Blasters is in the business of blasting buildings. On the way to a demolition job, several sticks of dynamite accidentally slide out of the back of Ben’s truck and come to rest on the shoulder of the highway. Officer Harry D. Guy comes across the dynamite and notices that it is “sweating” and that it would therefore be exceedingly dangerous to leave it where it is or to try to transport it someplace safe in his squad car. He lights the fuses and throws the dynamite into the lake at the side of the highway, where the explosion causes a harmless plume of water to shoot into the air. Moments later, having realized what happened, Ben returns to the spot to retrieve his explosives. Upon discovering what Harry has done Ben goes ballistic. “Without those sticks I can’t do this job today, and I can’t get any more until tomorrow. You’ve just cost me a $20,000 job! I’ll sue you and the whole state!” Which he does, claiming that he was deprived of property without due process. Because of the emergency nature of the situation, however, Ben will almost certainly lose his case just as he lost his cool.
EXAMPLE: On his way home that dynamite day Officer Harry D. Guy is distracted by the image of Ben’s shaking fist and the fear of getting sued. His distraction prevents him from seeing a mugging which takes place just 5 feet from his squad car while stopped at a particularly long red light. The victim of the mugging, catching the car’s number, sues Harry and the state for negligent failure to enforce the law and protect the citizenry of the state. Because Harry merely negligently failed to protect, the victim’s case will likely not succeed.
Once we have established that there has been a deprivation of liberty or property we can continue to the next step of our procedural due process analysis by asking what procedures are required in order to legitimately deprive someone of their life, liberty or property in the given case. Courts here have developed a balancing test that takes into consideration three factors:
- The importance of the private interest affected.
- The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards.
- The importance of the state interest involved and the burdens that any additional or substitute procedural safeguards would impose on the state.
The Court has repeatedly stated “that due process is flexible and calls for such procedural protections as the particular situation demands.”
EXAMPLE: Shawn’s Social Security disability benefits are terminated following a finding by the Social Security Administration that he no longer qualifies for disability. The SSA sends him a letter indicating the tentative termination and advising that he may request reasonable time to provide additional information to the SSA that would indicate he was in fact still qualified to receive benefits. Shawn writes back contesting one point and otherwise indicating that the SSA has everything they need to establish that he qualifies. If Shawn sues, claiming procedural due process was violated by the failure to hold an evidentiary hearing prior to cutting off his benefits, by applying the analysis we can conclude he would not succeed. (1) The private interest involved here is less than that of a welfare recipient, as was the case in
EXAMPLE: Joey Ramone is a student at High School High, a public school. After being caught smoking in the boys’ room by a hidden camera for the third time in a month the Principal decides to suspend him by sending a letter to that effect his parents who then bring a due process claim against the school. The Ramones argue that, at the very least, Joey should have been given notice of the charge against him and provided an opportunity to explain. (1) The nature of the private interest here is important. (2) Giving notice and providing an opportunity to explain is likely to lead to the discovery of some facts not already known in many cases. (3) The burden imposed by requiring notice and an opportunity to explain is minimal. The balancing, therefore, seems in favor of the Ramones.
So procedural due process, ultimately, comes down to the application of this three-part balancing test. Bear in mind, however, that while the test itself is simple, and while it is easy to predict when to make use of it, the way the test is applied by a court is not always so easy to predict.