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MBE: Con Law > Procedural Due Process > Flashcards

Flashcards in Procedural Due Process Deck (7)
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1
Q

Which of the following situations is most likely to raise a procedural due process concern?

A State legislation that affects the rights of the general population.

B A state agency firing an at-will employee.

C Negligent inaction by a state agency that results in injury to an individual.

D A judge has an interest in the case before her that causes a serious risk of bias.

A

If a judge has an interest in a case before her that causes a serious risk of bias, or actual bias, a procedural due process concern arises. The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law. Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge). If a judge has an interest in a case that causes a severe risk of bias, or actual bias, the procedure is not fair and the Due Process Clause is violated.

2
Q

T/F: A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.

A

True.

3
Q

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has __________.

A

a legitimate claim or entitlement to the benefit.

4
Q

An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker. Whether an individual is entitled to notice, a hearing, or some other fairness consideration depends on the circumstances of the particular deprivation.

What factors will a court consider in determining the type of procedural due process that is required?

A

The courts consider:

(i) importance of the individual’s interest that is involved,
(ii) value of specific procedural safeguards of the individual’s interest, and
(iii) government’s interest in fiscal and administrative efficiency. Normally, the person whose interest is being deprived should also receive notice of the government’s action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

5
Q

A state statute provided for the suspension or revocation of a retail business license where there have been “repeated violations” of specified regulatory statutes by any one individual or business. A store owner had already been fined three times under the statute. Several days later, the store owner received a notice from the regulatory agency that was created by the statute stating that his business license will be suspended for 21 days for violation of the statute.

If the store owner files suit to set aside the suspension, will the owner most likely prevail?

A

The most obvious problem in this situation is that the store owner has not been afforded the right to a hearing either before or after his license was suspended. A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property. Thus, the store owner should be granted a hearing before his license can be suspended.

6
Q

A state statute provides that all civil servants who have been employed for over 18 months may be dismissed only for “misconduct” and requires that state and city agencies comply with all procedures set forth in any personnel handbook issued by that agency. The personnel handbook of the state tollway authority sets forth detailed procedures for dismissal of civil servant employees. The handbook provides that written notice of the grounds for dismissal must be given to the employee prior to dismissal, and that the employee must, on request, be granted a post-dismissal hearing within three months after the dismissal takes effect. An employee is entitled to present witnesses and evidence at the post-dismissal hearing, and is entitled to reinstatement and back pay if the hearing board decides that the employer has not shown by a preponderance of the evidence that the dismissal was justified.

A state tollway employee of 3 years was fired. After an investigation by state auditors, the employee was notified by registered letter that he was being dismissed because of evidence that he took bribes. He was informed of his right to a hearing and requested one as soon as possible. Three weeks after his dismissal, the state personnel board conducted a hearing at which the employee denied the charges and presented witnesses to attest to his honesty. At the conclusion of the hearing, the board upheld his dismissal, finding that it was supported by a preponderance of the evidence.

If the employee files suit in federal court challenging his dismissal on constitutional grounds, will he be likely to prevail?

A

The employee will likely prevail because the procedures taken to terminate his employment did not satisfy due process. Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails). Here, the employee was notified of the charges but was not given any opportunity to respond to the charges until after his termination. Hence, his termination did not satisfy due process requirements.

7
Q

For many years, civil service rules have provided that any member of the city’s police department must serve a one-year probationary period before he or she will be considered a permanent employee. However, because the rules were enacted before the city’s police academy was established, a prospective police officer now spends six months in the academy before being hired by the city. A graduate of the police academy was with the city police department for eight months after graduation when she was terminated. There were no city ordinances or state laws that required that she be given either a reason for the termination or a hearing, and she was given neither. The graduate brought suit against the city in state court because of the termination of her employment, alleging a violation of her due process rights.

Which of the following would most likely give her a constitutional basis to require the city to give her a statement of reasons for the termination and an opportunity for a hearing?

A

The fact that no police officer has been terminated during probation except for cause may be enough for the graduate to show that she has a right to a hearing. Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for “cause.” If the graduate can establish this, she will be able to force the city to give her a reason for her termination and a hearing.