1. Kaplan University LS 500 Unit 7 Town Hall Welcome! Are there any questions as we begin? jpgray@kaplan.edujpgray@kaplan.edu Feel free to email at any time.

2. Pre-deprivation and Due Process Are Our Subjects Today What is due process? How would you describe it? The U.S. Supreme Court tries to balance individual interests vs. governmental interests to determine how much due process is warranted in various situations.

3. Should a government be able to suspend a person’s license to drive without a hearing (without due process)? In Mackey v Montrym, in 1979, the Court considered whether the state can suspend for 90 days without a prior hearing the driver's license of a motorist who refused to take a breathalyzer test following a motor vehicle accident. The Court, voting 5 to 4, held that the state could immediately suspend licenses in such cases.

4. “In Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees ANY right to a hearing, it should have the flexibility to give them a right to a hearing, but 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 as a matter of federal constitutional law, not state statutory law.” http://law2.umkc.edu/faculty/projects/ftrials/conlaw/proceduraldueproces s.html

5. Aspects of Due Process ("Fundamental Fairness") 1. The government must provide notice of the charges against you. 2. The government must be able to show that there is an articulated (non-vague) standard of conduct which you 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 property), 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 basis of any adverse finding. From prior posted link.

6. Some examples of procedural protections that may be required for certain types of deprivations: 1. 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). 2. The right to counsel. 3. The right to a pre-deprivation hearing. 4. The right to cross-examine witnesses. 5. The right to have a neutral person review an adverse decision. 6. The right to recover compensation for a wrongful deprivation. 7. The right to be present when adverse evidence is presented to the fact-finder. (from prior link)

7. CONSTANTINEAU CELEBRATES HER SUPREME COURT VICTORY Norma Constantineau 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 before the state could post her name on the "excessive drinker" list. This case involved a liberty interest.

8. What is a protected "liberty" interest? Wisconsin v Constantineau (1971) Paul v Davis (1976) Vitek v Jones (1980) Wisconsin v Constantineau (1971) Paul v Davis (1976) Vitek v Jones (1980) These are three very important cases in this area of law.

9. "Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so. Griswold/Roe/Casey Due Process Clause From: http://www.stanford.edu/group/psylawseminar/Substa ntive%20Due%20Process.htm

10. What are your thoughts about due process? Consider the right to be taken into custody when arrested. Why don’t we usually think of that as a right?

11. Are there areas that should be changed regarding substantive and/or procedural due process?

12. Questions/Comments/Thanks, JG