VI. Due Process Claims

LibraryLitigating Religious Land Use Cases (ABA) (2016 Ed.)

VI. Due Process Claims

On a fundamental level, due process is a command that government respect the legal rights of individuals. The U.S. Constitution contains two due process guarantees, in both the Fifth and 14th Amendments. While the Fifth's imposes limitations on the federal government, the 14th's ensures within the same section as the Equal Protection Clause that "[n]o state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law."307 Due process and equal protection are both, in the Supreme Court's view, "concepts . . . stemming from our American ideal of fairness."308 Though the Court recognizes that they are "not mutually exclusive," they nonetheless are not necessarily "interchangeable phrases."309 In a sense, equal protection arising from due process is a by-product of the provision's focus on ensuring the nonarbitrary administration of justice for all. Yet perhaps the most significant application of the Due Process Clause has been incorporating most provisions of the Bill of Rights, which initially only limited actions of the federal government, and applying them against state governments through the 14th Amendment.

Due process claims come in two primary forms, the first of which is procedural. That government shall not deprive one of "life, liberty, or property" without "due process" intimates a procedural concern. In this vein the clause ensures that government provide procedural protections appropriately proportionate to the degree of life, liberty, or property interests at stake. Individualized assessments, such as those made by zoning administrators, can give rise to procedural due process questions because these assessments must conform to adequate procedural standards. It is nonetheless important to remember that this constitutional protection does not necessarily mean that government may not deprive you of rights. Rather, it simply provides that you be afforded due process of law before your rights can be deprived. In accord with the Due Process Clause, moreover, individuals have this interest in fair legal proceedings only when government action threatens to deprive them of one of these three interests.310 One can thus glean the three-step analysis all courts take for procedural due process claims:

1. Has there been a deprivation?
2. Does the deprivation implicate life, liberty, or property?
3. What procedures should be required?311

Whether government has an adequate justification for depriving someone of life, liberty, or property gives rise to the second and substantive form of due process. The doctrine of substantive due process is designed to curtail government from unreasonably interfering with important human interests. These interests are broad but limited, and only those that courts deem "fundamental" will be subject a law to strict scrutiny when impinged upon. Rights considered "fundamental" under due process analysis are typically those that in the court's view are either "of the very essence of a scheme of ordered liberty"312 or "deeply rooted in this Nation's history and tradition."313 All other rights prompt courts to analyze law merely under rational basis review.

Courts understand the most common applications of substantive due process as follows:

1. Application of one of the rights enumerated in the federal constitution, such as the First Amendment, to a state.
2. Application of a right unenumerated in the federal constitution to a state, such as the right to live together as a family.
3. An action of state or local government which "shocks the conscience" of the federal court. . . .
4. The right not to be subject to "arbitrary or capricious" action by a state either by legislative or administrative action. . . .314

Historically there have been significant shifts in substantive due process standards of review. Presently the Supreme Court has narrowed fundamental rights for substantive due process claims down to concerns central to autonomy and various privacy interests, though broadly understood, which one commentator has labeled the sphere of "sex-marriage-childbearing-childrearing."315 Yet there was a time in the nation's history when courts rampantly invoked the Due Process Clause to invalidate a broad range of economic regulations as an unreasonable application of state police power.316 In stark contrast, today similar sorts of economic regulations enacted pursuant to state police power, such as zoning regulations, are subject not only to rational basis review but perhaps even a watered-down version of the standard. Indeed, courts will begin their rational basis review with a strong presumption of a police power regulation's constitutionality.317

Furthermore, in searching for a reasonable explanation for the regulation, courts are not limited to reasons litigants provide; they are instead free to hypothesize about what a legislature "might have concluded" when legislating318 and can uphold a law under a justification never raised in the lawsuit.319 And in some cases still, courts may effectively abandon any level of scrutiny by refusing to entertain "vague contours" of due process.320

To succeed on both procedural and substantive due process claims, the property owner must first demonstrate that he was deprived of a constitutionally protected liberty or property interest.321 In some instances, a person can have a constitutionally protected property interest in a government benefit, such as a license or permit.322 To have a property interest in a government benefit, one must have something greater than an "abstract need," "desire," or "unilateral expectation" of it.323 There must be "a legitimate claim of entitlement to it."324 But there is state law component to property interest analysis beyond these constitutional considerations. Property interests must "stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."325

A number of factors can contribute to establishing a legitimate claim of entitlement. For instance, one can be established when state law "imposes significant limitations on the discretion of the decision maker"326 Such an arrangement would seem to suggest that only arbitrary administrative behavior could account for an unfavorable ruling. Most courts have therefore held that such an entitlement to a government permit exists when a state law or regulation requires that the permit be issued if certain requirements are satisfied and the application had satisfied them.327 Others, meanwhile, have been unconvinced by this line of reasoning.328

In any event, the Supreme Court in Perry v. Sindermann recognized the existence of constitutionally protected property interests where a governmental body employs policies and practices that create a legitimate claim of entitlement to a government benefit.329 The plaintiff in Perry, a nontenured junior faculty member at a state university, argued that he had a protected property interest in his job in light of his employer's "de facto tenure program" for which he qualified.330 The Court sided with Perry, explaining that

a person's interest in a benefit is a "property" interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.331

That holding underscored the principle that legitimate claims of entitlements need not exist formalistically by right, and was rendered in the wake of an important related development in due process jurisprudence.

Prior to the 1970s most courts thought of government benefits as privileges instead of property rights. Under this theory, being denied a government benefit would not create a property interest because privileges were revocable. But between 1970 and 1972 the Supreme Court underwent what some commentators have termed a "due process revolution" as the Court redefined property interests to include government benefits.332 The Supreme Court made the initial turn in Goldberg v. Kelly, holding that welfare payments were not "mere charity" but a property right to be protected against arbitrary government interference.333 That decision set the stage for Perry and other cases to conduct a more holistic review of factors that contribute to establishing property interests. One such case from the Ninth Circuit, Orloff v. Cleland, further defined the standard that a reasonable expectation to continue enjoying a particular benefit can create a property interest:

Despite the apparent expiration date of [the plaintiff's employment] contract, there may have arisen an understanding of continued employment based on prior treatment of [the plaintiff] or other . . . employees sufficient to constitute a de facto property interest.334

However, a person's belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not necessarily create a property right if government is not actually required by law to confer said benefit. For example, if law dictates that a government agency make welfare payments, the government cannot deny that one who qualifies for the benefit has no claim to the benefit. However, if, say, a zoning administrator granted a particular land use permit request in the past on a discretionary basis, it is not clear that the land owner will be entitled to a renewal of that permit at a later date—even if the administrator in the past has been generally willing to grant renewals. The Supreme Court has explained that" [a] constitutional entitlement cannot be created—as if by estoppel—merely because a wholly and expressly discretionary state privilege has been granted generously in the past."335 Circuit courts have gone on to hold so in a variety of contexts.336

a. Procedural Due Process in Land Use Cases

As noted above, the 14th Amendment Due Process Clause states that no...

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