Any Individual Who Is Interested in a Particular Property May Review the Public Records

Introduction The about obvious requirement of the Due Procedure Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property").  Although information technology is probably the instance that the framers used the phrase "life, freedom, or property" to be a autograph for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their belongings--if the interest doesn't autumn into one of those three boxes, no matter how important it is, it doesn't qualify for ramble protection.  Thus, for example, the Court has ruled that the authorities may  severely impairment an individual'due south reputation (by, for instance, putting his proper name on a list of "known shoplifters") without affording process.

The Due Process Clause serves two basic goals.  One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests.  The other goal is to make people feel that the authorities has treated them fairly by, say, listening to their side of the story.

The Due Process Clause is essentially a guarantee of basic fairness.  Fairness can, in various cases, have many components: notice, an opportunity to exist heard at a meaningful time in a meaningful mode, a conclusion supported by substantial testify, etc.  In general, the more important the individual right in question, the more than process that must be afforded.  No one can exist deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations virtually aggravating factors justifying decease.  On the other mitt, suspension of a driver's license may occur without many of the same protections.

The cases on this folio demonstrate the Supreme Court'southward approach to key questions apropos procedural due process. Board of Regents 5 Roth shows how the Court has defined "holding" interests for purposes of the due process clause.  The instance involved the decision of a public college non to renew the contract of an untenured professor.  The Court ended that the professor had no "liberty" interest in any specific didactics chore, and that he had no "property" involvement in his chore because he lacked "a legitimate merits of entitlement" under state constabulary to his job.  The Court noted that he would have had such a claim of entitlement had he been tenured, considering then the college would accept had to make a specific showing of poor functioning in order to sustain its dismissal.  Without a legitimate claim of entitlement to his job, the Court reasoned, in that location is cipher to have a hearing about.  Belongings interests, the Court stress, must be found in the statutory or mutual law of the jurisdiction.

Unlike holding interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution.  Deprivations of sure basic liberties (such every bit the freedom to travel, the liberty to live with and heighten children, the freedom from incarceration, or the freedom to not be subjected to physical violence or forced medical treatment) will trigger a requirement that the government afford due process.  But not every serious injury inflicted by the regime is necessarily a deprivation of a liberty involvement, co-ordinate to the Court.  In 1971, in Constantineau 5 Wisconsin, a example involving a governmental posting of the names of "excessive drinkers," the Court ended that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty involvement in her good proper name and reputation, the Court said.  Withal, v years later in Paul five Davis, a instance involving the government's distribution of a listing of "active shoplifters," the Courtroom reversed class and held that damage to an individual's reputation--continuing lonely--is not deprivation of a protected liberty interest.  The Court distinguished Constantineau, now finding that the private'southward additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case.  In Vitek five Jones (1980), the Court plant that due process must be afforded before an inmate in lonely confinement was transferred from a state prison to country mental hospital, where he would be forced to undego behavioral modification.  The Courtroom rejected the land'due south argument that inmates had already lost their liberty, so that transfer from one state institution to some other shouldn't trigger a requirement of due process.

The last two cases demonstrate how the Courtroom has balanced private interests confronting government interests to determine how much process is due in specific contexts.

In Mackey v Montrym, the Courtroom considered whether the land can append for 90 days without a prior hearing the commuter'south license of a motorist who refused to have a breathalyzer test post-obit a motor vehicle blow.  The Court, voting 5 to iv, held that the state could immediately suspend licenses in such cases.  The majority gave considerable weight to the state'due south asserted interests in removing drunkard drivers from highways as soon every bit possible and in providing drivers with a stiff incentive to take the test.  Although the Court recognized that people today have a "substantial" interest in keeping licenses to bulldoze, it also stressed that the gamble of erroneous deprivation was low considering only rarely will there exist a real dispute every bit to whether the motorist refused or did not refuse to take the breathalyzer test.  The dissenters saw a greater likelihood of factual disputes (due east.g., did the refusal follow a clear demand with a warning of the consequences?) and noted that the state's statement near getting drunks off the road fast was undercut by the fact that a person who failed the breathalyzer test would be allowed to keep to drive until his trial date.

In Cleveland Lath of Pedagogy five Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to make up one's mind whether they had, in fact, violated schoolhouse commune rules as the district had alleged.  The Lath of Didactics argued that since it never had to give its employees Whatever right to a hearing, it should have the flexibility to give them a correct to a hearing, just allow a pre-hearing suspension without pay.  The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined equally a affair of federal constitutional law, not state statutory law.

  Aspects of Due Process ("Fundamental Fairness")
i. The government must provide discover of the charges against you lot.
ii.  The government must exist able to evidence that there is an articulated (non-vague) standard of comport which y'all are accused of violating.
3.  The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time  (the "hearing requirement").
4.  In order to sustain its position (i.e., its deprivation of your liberty or holding), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.
5.  The government must provide some explanation to the individual for the footing of any agin finding.

 Some examples of procedural protections that may be required for certain types of deprivations:i.  Elevated burdens of proof that the government must satisfy, such as "beyond a reasonable doubt" (criminal cases) or "clear and convincing evidence" (termination of parental rights).
ii.  The right to counsel.
3.  The right to a pre-deprivation hearing.
four.  The correct to catechize witnesses.
5.  The right to take a neutral person review an agin determination.
6.  The correct to recover compensation for a wrongful deprivation.
seven.  The right to be nowadays when agin evidence is presented to the fact-finder.

Due Procedure Clause (14th Amendment)
[No Country shall] deprive any person of life, freedom, or property, without due procedure of constabulary.

 How to prove a procedural due process violation:

i.  Show that the regime has deprived* yous of a non-footling protected involvement, one that the Supreme Court would recognize as falling into one of the three boxes above.
*The deprivation past the government must not exist based on unproblematic negligence (e.g., prison officials losing the personal property of an inmate.)
(Note: Critics of this atomistic arroyo believe that it would be more consistent with framers' intent (and more sensible) to simply require a showing of a governmental deprivation that acquired a serious injury.)
2. Testify that your loss of the process you claim is owed you (taking into account the seriousness of your impecuniousness and including the added risk of an erroneous deprivation) outweighs the regime's interests in not affording the  process in question.

Cases

What is a protected "belongings" interest?
Board of Regents v Roth (1972)
What is a protected "freedom" interest?
Wisconsin five Constantineau (1971)
Paul 5 Davis (1976)
Vitek v Jones (1980)
The balancing exam: What procedure is due?
Mackey five Montrym (1979)
Cleveland Bd. of Educ. v Loudermill (1985)

CONSTANTINEAU CELEBRATES HER
SUPREME COURT VICTORY

Norma Constantineau, above, challenged a Wisconsin law that allowed the chief of police to identify her as "an excessive drinker" and deny her the right to buy alcohol.  Constantineau successfully argued that the due process clause entitled her to a hearing earlier the country could mail service her proper noun on the "excessive drinker" list.

Questions ane. Who is protected by the Due Process Clause?  Does it protect, for example, aliens?
2.  How does the Courtroom determine whether an individual interest is a property interest within the significant of the Due Process Clause?  What might create "a legitimate claim of entitlement in police"?
3.  How does the Court determine whether an individual interest is a freedom involvement within the meaning of the Due Procedure Clause?  Should damage to one'southward reputation exist enough to trigger or due process, or is the Court correct in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?
4.  If a state might create property interests through contracts, why can information technology not at the same fourth dimension limit the process it will beget when it takes abroad those interests it has created?
5.  What two factors does the Courtroom look to in weighing an individual interest to determine how much procedure must be afforded before information technology is taken abroad?
six.  In weighing an individual interest to decide the amount of process to be afforded, should nosotros look at the importance of the interest in question to the particular litigant before the court, or instead expect at the interest's importance to the category of persons who might object to its deprivation by the government?
7.  If the regime never had to create a property correct in the first identify, why shouldn't it exist complimentary to create the holding correct ("the legitimate claim of entitlement"), but at the aforementioned time limit the corporeality of process information technology will extend?

"John Television receiver"

Cities trying to combat  prostitution take tried  an innovative arroyo: "John Telly."  Believing that the potential embarrassment of being identified on local access television every bit someone who has attempted to solicit a  prostitute volition discourage persons from seeking prostitution services, some  cities have televised mugshots  of persons arrested, but not even so convicted, of soliciting prostitution.  Is such a scheme consequent with the due process clause?

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Source: http://law2.umkc.edu/faculty/PROJECTS/FTRIALS/conlaw/proceduraldueprocess.html

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