Constitutional Law II
Procedural Due Process
Prelude
Fall 2006
Con Law II
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Procedural vs. Substantive DP
Neither SDP nor PDP prohibits the state
from depriving persons of rights, but

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State must provide adequate procedural
safeguards – PDP, and
Adequate reasons for the deprivation – SDP
Why PDP?
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Guard against mistake & arbitrary state action
Provides record for review
Participation by citizens in the decisions that
most affect them promotes virtue & democracy
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Framework for Analysis
1. Is a protectable interest (“right”) involved?
A. How are rights created?
PDP protects
a broader
array of
rights than
does SDP
i. US constitution creates liberty (fundamental) rights
ii. State law also creates liberty (ordinary) rights
a. E.g., right to reputation is created by state law – often by
tort law, such as defamation
iii.State law also creates property rights
B. How are rights protected?
i. Constitutional liberty rights are protected both
procedurally (PDP) and substantively (SDP)
ii. State liberty rights are protected only procedurally
iii.State property rights protected by PDP and SDP
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Mostly
Con Lawvia
II Takings & Contracts clauses
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Framework for Analysis
2. Has the right been “deprived”?
A. For SDP purposes, deprivation includes
i. Prohibition
ii. Undue burdens (obstacles to exercising right)
iii. Unequal allocation (under EP clause)
B. For PDP purposes, deprivation means lack of
adequate procedures
i. Procedural fairness is not a fixed concept; it
depends on the nature of the right involved
ii. Some constitutional liberty rights contain their
own required procedures (e.g., 6th/7th am trial)
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Con Law II
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Framework for Analysis
3. What process is “due”?
A. For constitutional liberty rights:
i. The const itself may specify a procedure (eg trial)
ii. If not, the Court defines content of PDP
a. Typically: notice, hearing, opportunity to defend
B. For state liberty rights:
i. First look to the state law that created the liberty
right, to see if it specifies any procedures
ii. If not, Court defines content of PDP
a. Lesser procedures may be “due” for state-created rights
than for constitutional rights
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Con Law II
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Framework for Analysis
3. Is the deprivation intentional?
A. “Deprivation” has been interpreted to require
intentional/deliberate state action
1. Statute, regulation, written policy
2. Unwritten custom or practice
B. Negligent state action that causes loss of
liberty or property right is not “deprivation”
C. Unauthorized (ultra vires) acts by lower-level
officials also not “deprivation”
Fall 2006
Con Law II
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Framework for Analysis
4. When must PDP be observed?
A. Default rule: before deprivation occurs
B. Exceptions to default rule:
i. Impracticability; urgency
ii. Low-ordered state-created right
C. For state liberty rights:
i. The right itself may be defined by the procedures
a. e.g., right to reputation is created by state tort law for
defamation suits
b. The tort suit itself is all that PDP demands
ii. This creates an “exhaustion” (“ripeness”) problem
for certain state-created liberty rights
Fall 2006
Con Law II
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Framework for Analysis
5. How much process is due?
A. Matthews v. Eldridge (1976) balancing test
1.
2.
3.
4.
Importance of the private interest
Risk of deprivation by inadequate procedures
Value of additional procedures
Strength of the public interest affected
B. Examples
A. Traffic stop for drunk or reckless driving
Fall 2006
Con Law II
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Bd. of Regents v. Roth
(1972)
Does David Roth have a property right in
his state teaching job?

Depends on state law
Always true
 Statute
 Contract
 Informal promises, custom and usage
Did his right extend beyond contract end?

If not, how to protect against arbitrary state
action in not renewing him? (see Marshall dissent)
 NB: One function of due process hearing is to
Fall 2006
smoke out impermissible state reasons, e.g, didn’t
like his viewpoint
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Bd. of Regents v. Roth
(1972)
No PDP right to government regularity

Lest, federal courts have to review all state
decisions (not just in hiring)
What would have given Roth a “right” to
contract renewal?

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Positive or decisional law
Any reasonable state-created expectation, such
as formal or informal tenure (Perry v.
Sinderman)
Did Roth have a liberty interest?
Fall 2006
Con Law II
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The Bitter with the Sweet
Major Premise:

Whether a liberty or property right is created
by the state depends on state law
 State law for these purposes can be statutory, common law,
custom, usage or practice (including state contracts)
Minor Premise:

Where a state law that creates a right contains
procedures for its protection, those procedures
become part of the right itself and define PDP
Conclusion:
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PDP is violated only when the state denies the
very procedures it has promised to provide
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The Bitter with the Sweet
Paul v. Davis (1976)
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Facts: Police Chief Paul posted flyer of Davis as
an “active shoplifter”
Claim: Paul defamed Davis without notice/PDP
Holding: Reputation is not a const’l liberty right
But state created a liberty right to reputation
by enacting defamation laws
 State defamation law contains built-in procedure for
protecting reputation - tort suit
 Since the procedure remains intact, no PDP violation
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This circularity creates exhaustion requirement
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The Bitter with the Sweet
Bishop v. Wood (1976)
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Facts: “Permanent” police officer fired for “poor
performance”
Claim: Firing without hearing violated PDP
Holding: Property is defined by state law
 Scope of property right was defined by the
procedures contained in municipal law.
 The only procedure specified was a written
statement of the reasons for firing
 Since employee received the written statement, his
property right was fulfilled, not deprived
 Since no deprivation, no PDP hearing was required
Fall 2006
Con Law II
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The Bitter with the Sweet
Cleveland Bd. of Ed. v. Loudermill (1985)
Facts & Claim: Similar to Bishop
 Holding: Bitter with Sweet doctrine overruled

 Scope of state-created liberty/property rights are
determined independently of procedures specified
 Look to state law to see if liberty/property right exists
 Then look to federal (common) law to see if
procedures comport with PDP

State-granted procedures do not define scope
of right, but substance of state law does
Fall 2006
Con Law II
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A.M. Mutual Ins. v. Sullivan (1999)
Facts: PA Workers’ Compensation Law provides
medical benefits to injured workers, but they do
not receive benefits until after insurer appeals
Claim: “Utilization Review” denies timely PDP
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Property right arises as soon as employer is found
liable (i.e., injury on the job)
Payments cannot be withheld until after a hearing
 Even if the hearing is adequate, it must be pre-deprivation
Holding: State law defines property right as
right to reasonable & necessary treatment
 Which does not arise until after “Utilization Review”
Does Sullivan resurrect “bitter with the sweet”?
Fall 2006
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Relationship between SDP & PDP
SDP: State cannot deprive protected right
without sufficient justification

Only const’l (fundamental) rights protected
PDP: State cannot deprive protected right
without adequate procedures

Both const’l and state-created rights protected
Examples:

Goldberg v. Kelley (1970)
 Public assistance not protected under SDP
 But state cannot cut off welfare without PDP
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Relationship between SDP & PDP
Examples:

Goss v. Lopez (1975)
 No SDP right to a free public education
 But a PDP right, if created by state law
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State educational statutes
compulsory attendance requirement
Michael H. v. Gerald D. (1989)
 No state-created right for adulterous fathers to have
parental rights in their biological children
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Hence, no need to provide any PDP hearing, unless
 The right is found in the constitution
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Fall 2006
As a matter of SDP (It is not)
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Welcome to Autumn
Fall 2006
Con Law II
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Welcome to Autumn
Fall 2006
Con Law II
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Castle Rock v. Gonzales
(2005)
Facts: Police fail to enforce restraining order
against estranged husband, who kills his children
SDP claim: police inaction “deprived” mother
and children of life and liberty interests
Holding (Ct. Appeals): no const’l duty to protect

Only intentional action can constitute a deprivation
 “Original intent” of 14th amd framers supports both conclusions

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There are no positive SDP rights. DeShaney v. Winnebago
“Special Relationship” Exception:
 “When the State by the affirmative exercise of its power so
restrains an individual's liberty that it renders him unable to
care for himself." Examples: prison, foster care
Fall 2006
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Castle Rock v. Gonzales
(2005)
PDP claim: restraining order created a property
right to police protection, which the City deprived
without notice & hearing
Holding (S.Ct): discretionary state benefits do
not constitute protectable PDP rights (no promise)

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Restraining order did not “mandate” police protection;
it remained discretionary with the police department
Even mandate (promise) of police protection may not
create a “property right” if “incidental” to other goal
 Does it look/feel like property? See Stevens dissent
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Fall 2006
Souter: Colo law created, at most, state procedural
right, independent of whether property right exists
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Castle Rock v. Gonzales
(2005)
Subtext:
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Court does not want § 1983 to become a font
of “federal tort law”
 Especially in state executive matters (e.g., police)
 Is this a federalism decision?
Criticism:
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
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If § 1983 is too broad, it is up to congress to amend
State can avoid creating rights by retaining discretion
State can act in an arbitrary fashion (violate PDP) if it
reserves to itself the right to act arbitrarily (discretion)
How is this different than “bitter with the sweet”?
Fall 2006
Con Law II
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Castle Rock v. Gonzales
(2005)
Deference to lower courts

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Findings of fact
Interpretation of state law
 Interpretation creates “common law”
 Is this an appropriate case to reject deference?
 Did S.Ct. get the issue right?
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Certification to state supreme court
Law as Technocratic vs. Compassionate
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Why did Ct. go out of its way to find police
protection discretionary, creating no rights?
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Daniels v. Williams
(1986)
Facts:

Prisoner injured due to guard’s negligence
Claim:

Denial of “liberty” (bodily safety) w/o DP
Holding:

Negligence not a deprivation for DP purposes
 As “originalist” matter, only intentional abuses of
state power were forbidden (also by Magna Carta)

Disagreement on this historical reading
 As “textualist” matter, “deprivation” seems to require
an affirmative act
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True? Whose perspective? Perpetrator or victim?
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Daniels v. Williams
(1986)
Alternate Claims:

State tort law creates a liberty interest in
freedom from negligence
 State liberty interests protected by PDP but not SDP
 No “deprivation” if tort suit available (exhaustion)


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What if prison guards have immunity under state law?
The extent of plaintiff’s state right necessarily includes that
SDP right to freedom from injury
 Affirmative injury is actionable (e.g., police brutality)
 “Negligence” is not a “deprivation” for SDP
 Unless “special relationship” exists?
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E.g., failure to protect inmate from others
Only minimal care required (food, medicine)
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What process is due?
Nature of the hearing

Mathews v. Eldridge - balancing of interests
 Importance of the private interest affected

E.g., going to jail is more serious than losing license
 Risk of erroneous deprivation

Would more elaborate procedures guard against mistake?
 Countervailing government interests
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E.g., emergency, public health, fiscal
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What process is due?
Timing of the hearing

Pre-deprivation where
 Important interest involved, and
 Practicable to provide it

Post-deprivation where
 State needs to act urgently

Losing license for parking ticket vs. reckless driving
 Impracticable to provide


E.g., negligent or unauthorized action by agents
Stepped process is ok
 Simple administrative determination pre-depr.
 Followed by more elaborate hearing post-dep.
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Vlandis v. Kline
(1973)
Facts:

CN irrebuttably presumes out-of-state students
do not acquire residency during college
 Can charge higher tuition since no “fund. right” involved
 States can set “bona fide” residency standards
Claim:

State law creates property right (reduced tuition)
for residents, that cannot be deprived w/o PDP
 Irrebuttable presumption denies opportunity to be heard
Holding:

Irrebuttable Presumptions violate PDP
 If a liberty or property right otherwise exists
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Con Law II
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DP in other contexts
PDP usually arises in context of agency
(executive/administrative) action
Judicial

5th, 6th & 7th amendments
Legislative
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Fall 2006
Regularity in passage of legislation
Ex post facto clause
Bills of Attainder
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