I Think There Is A Due Process Lawsuit Package Brewing
Formal Proceedings Before Taking Away Liberty Interest: Procedural Due Process
One of the most important civil rights is the right to due process. Under the 5th and 14th Amendments, prior to a deprivation of “life, liberty, or property” the government must provide a person with a fair legal proceeding. Judicial interpretations over the course of a century have provided us with comprehensive sets of rules to interpret this important but vague right.
How are “liberty” and “property?” defined?
Procedural due process originates in the text of the Due Process Clauses of the United States Constitution’s Fifth and Fourteenth Amendments. Both amendments provide that neither the federal government nor state government may “deprive (an individual) of life, liberty, or property, without due process of law…” Since the adoption of these amendments, the definitions of “liberty” and “property” have evolved.
In the 1923 case, Meyer v. Nebraska, Justice James Clark McReynolds introduced a broad definition of the term, “liberty” that is widely accepted today. In his opinion, he wrote, “Without doubt, liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Later Supreme Court cases introduced more liberty interests, such as the right to preserve one’s good name and the right to pursue a chosen occupation.
A deprivation of liberty may occur if a person loses significant freedom of action, or if the federal or state government denies freedom provided by a statute or the Constitution. For example, if the government wants to restrict a person’s ability to legally drive a car, ability to raise his own children, or ability to work in a particular field, it is denying that person liberty. As such, he has certain due process rights.
Property means personal belongings and real property. The judiciary has expanded the definition of property interests, however, to also include entitlement to a benefit under federal or state law. Examples of property interests are extensive, including, for example, the right to free public education. Even if something is not considered an inherent right, once a person has it, depriving it requires due process. So, while the right to free public education is not considered a fundamental right in most states, once the state does provide it, it must afford people due process before it withdraws that education (such as, for example, by suspending a student).
What does procedural due process consist of?
The procedural requirements for effective due process vary based on what right is being deprived. Some of the procedural rights that apply to various types of rights deprivations include:
· An unbiased tribunal
o Applicable to criminal cases and detentions for safety purposes.
· Notice of the proposed action and the grounds asserted for it
o Applicable to almost every deprivation.
· Opportunity to present reasons why the proposed action should not be taken
o Also applicable to most deprivations, including denials of benefits.
· The right to present evidence, including the right to call witnesses
o Applicable to criminal trials, denials of access to one’s children, and comparable deprivations.
· The right to know opposing evidence
o Applicable to criminal prosecutions.
· The right to cross-examine adverse witnesses
o Applicable to criminal trials.
· Opportunity to be represented by counsel
o Applicable to criminal prosecutions.
· Requirement that the tribunal prepare a record of the evidence presented
o Applicable to criminal prosecutions and many administrative hearings.
In other cases, there are lesser standards for due process rights. For example, in the case of a suspension of a child from a public school, the child has the right to an opportunity to be heard, but not necessarily the right to a full adversarial hearing.
How much process is due?
In Mathews v. Eldridge, the Supreme Court established a three-part test to determine the appropriate level of due process for a deprivation:
(1) Analyze the private interests affected by the official action;
(2) Evaluate the risk of erroneous deprivation of the private interest through the procedures used and the probable value of additional or substitute procedural safeguards;
(3) Analyze the government’s interest in administrative and fiscal efficiency
The greater the value of deprivation, the greater the due process that must be afforded. For example, the Supreme Court has reasoned that real property ownership holds greater intrinsic value than personal property ownership, and therefore, that deprivations of real property trigger greater due process protections.
The second Eldridge factor requires a court to examine the risk of wrongful deprivation of an interest and the likelihood that an important interest will be erroneously deprived without safeguards. A court will prescribe additional procedural safeguards if there is a greater possibility that interest will be wrongfully deprived.
In Eldridge, the Court held that the government did not need to provide a pre-termination hearing prior to curtailing Social Security Disability benefits. The Court reasoned that the potential value of the hearing was not very high. The ability to challenge the termination after it is put into effect is sufficient. That the pre-termination hearing may provide greater procedural safeguards is insufficient to require those of the government.
As additional procedural safeguards require more time and money, they become less likely to be required. The government has an interest in efficiency to not only avoid a backlog of appeals but to also avoid increased litigation expenses and time-consuming hearings.
The issue of providing procedural due process safeguards in the field of immigration and deportation proceedings has been litigated recently. The government argues that the fiscal and administrative burden of holding formal adjudication hearings for all immigration matters drains the government’s limited financial resources. To support this claim, a 2010 study found that the federal government saved $100 million by issuing removal orders without formal adjudication procedures. As such, the government has claimed that it has not violated rights to procedural due process by not affording people extensive pre-deportation hearings. The government’s goal of saving time and money can outweigh an individual’s property or liberty interests. Of course, this is only one side of the balancing test. The liberty interest of the people being subjected to deprivations must also be considered.
Procedural due process prevents the deprivation of one’s life, liberty, or property without appropriate procedures to safeguard one’s interests. The doctrine has matured over the course of US history and has been key to establishing a democratic society where the government treats its citizens with fairness and respect.
 Meyer v. Neb., 262 U.S. 390, (1923).
 Bd. of Regents v. Roth, 408 U.S. 564, (1972).
 Goss v. Lopez, 419 U.S. 565, (1974).
 Peter Strauss, “Due Process,”
 Jennifer Koh, “Waiving Due Process (Goodbye): Stipulated Orders of Removal and The Crisis in Immigration,” 91 N.C.L. Rev. 475, (2013).
 Connecticut v. Doehr, 501 U.S. 1 (1991).
 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
 Alex Cameron, Due Process and Local Administrative Hearings Regulating Public Nuisances: Analysis and Reform, 43 St. Mary’s L. J. 619, (2012).
 Waters v. Churchill, 511 U.S. 661, 675 (1994)
 Letter from Am. Immigration Lawyers Ass’n to Charles K. Edwards, Acting Inspector Gen. 5 n.23 (Aug. 2011)