Procedural Due Process of Law, Civil (Update 1)

• Author: Judith Resnik
• Pages: 2031-2034

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A claim for procedural due process is a claim that the government cannot undertake a particular act vis-à-vis an individual or set of individuals without according them an opportunity to be heard. Depending upon the situation, a consitutionally adequate opportunity to be heard may be

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involve a "hearing" that is written or oral and may occur before or after the alleged "deprivation" has occurred. The contexts in which the issue of procedural due process arises vary; included among the litigants who have raised procedural due process challenges heard by the United States Supreme Court since the mid-1980s are PRISONERS, ALIENS, food stamp recipients, veterans, and college athletes.

A procedural due process claim is not a challenge that the government is absolutely forbidden to act in a particular way. Rather, a procedural due process challenge is that as a predicate to action, the government must accord the person(s) subject to the action with a set of procedural safeguards, designed to make the government's decision more accurate and to recognize the dignitary and participatory interests in process that both the person(s) and society have.

Making the distinction in practice between SUBSTANTIVE DUE PROCESS and procedural due process, however, is not always easy. For example, many due process opinions discuss whether or not a court in one jurisdiction can hale an outsider (a citizen of another state or country) before it and what jurisdiction's law may constitutionally be applied to that lawsuit. For more than a century, the Supreme Court has talked about these cases as raising due process problems, but has not always identified which kind of due process was at issue. Only relatively recently have commentators discussed such issues as substantive due process questions?despite the fact that the issue arises in the context of where and how to conduct a lawsuit. Another illustration is a group of due process cases that address access to EVIDENCE. In Arizona v. Youngblood (1988) the Supreme Court held that upon specific request of defendants, prosecutors have some obligation to disclose exculpatory information in their possession, but, absent bad faith on the part of police, "failure to preserve potentially useful evidence does not constitute denial of due process of law." Once again, although the rights involved related to litigation, the Court did not specify the kind of due process at issue but relied on a substantive due process analysis.

Supreme Court doctrine requires that for one to bring a procedural due process claim, two prefatory elements be established?STATE ACTION and intent. Knowing when the state is acting is not always easy. For example, the Supreme Court concluded in National Collegiate Athletic Association v. Tarkanian (1987) that the National Collegiate Athletic Association was not engaged in state action, despite the fact that its 960 members include "virtually all public and private universities and four-year colleges conducting major athletic programs in the United States." Second, the governmental action must be intentional. In Daniels v. Williams (1986) the Supreme Court held that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property."

Once a claim has cleared the hurdles of intentional deprivations by government action, two more questions remain: (1) Does the governmental action threaten to deprive one of "life," "liberty," or "property"? (2) If so, how much process is due? The answers from the Supreme Court have limited both the instances when the clause applies and the quantum of process due.

"Property" continues to include both traditionally understood material possessions and state-created benefits, such as SOCIAL SECURITY, licenses, and other statutorily...