Procedural Due Process of Law, Civil (Update 2)

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PROCEDURAL DUE PROCESS OF LAW, CIVIL (Update 2)

Procedural due process presupposes that the state may take a "liberty or property interest" when it has a good reason, and addresses the procedures required when it does so. The constitutionally required procedures ensure that state decisions depriving individuals of protected interests are fairly made and reasonably correct, insofar as our decisional methods allow. The determinative test balances private against governmental interests and considers the risk of error inherent in particular procedures. In general, the more important the private interest, the more fair and accurate the procedures must be. As the government's interest becomes more significant, and as procedural costs increase, the state may seek to adopt more summary procedures, less protective of private interests.

The more important the interest the government seeks to take, the more the required procedures will approximate the adversary trial paradigm. When the state seeks to take any truly important interest, and where facts are in issue, procedural due process requires notice, an oral hearing, presentation of evidence before an impartial decisionmaker, an opportunity to confront and cross-examine witnesses, counsel, and a decision on the basis of the record. Where someone will suffer serious injury pending a hearing, such as a terminated employee with no possibility of reinstatement or back pay, there should be some predeprivation hearing. Where the private interest is less important, procedural requirements are less substantial, and other exceptions turn on the taking's redressability, seriousness, and the state's need for quick and economic action. A summary predeprivation hearing, with notice, opportunity to respond, and a decision whether there are grounds to act will often serve. If necessary, a more substantial postdeprivation hearing may then follow. In emergencies, such as the need to destroy diseased animals, or where the taking harm is negligible or readily redressable, a postdeprivation hearing satisfies.

An important line of procedural due process cases deals with the question of what process the state must give when private parties seek state aid in taking another's property, as in cases involving ex parte prejudgment attachments or garnishments. Here the balancing is between competing private interests, but as there is state involvement, procedural due process requirements apply. The Court has consistently held, as in the most recent case, Connecticut v. Doehr (1991), that, extraordinary circumstances aside, there must be a preattachment hearing.

The state may also act ex parte, for example when seizing property through civil forfeiture proceedings. Where the property is movable, an extraordinary circumstance, the government may seize it ex parte without notice and hearing. Where real property is involved, as in United States v. James Daniel Good Real Property (1993), notice and a hearing are required, even though the seizure is justified under the fourth amendment. Procedural due process is an independent constitutional requirement, and forfeiture proceedings seek to take property, not merely use it as evidence.

Because procedural due process is a federal constitutional guarantee, its violation creates a federal civil rights action against state officials. It may also constitute a state cause of action, such as a conversion tort when a prison guard unlawfully takes a prisoner's property. This raises a federalism concern about constitutionalizing tort litigation involving state officials. Note also that if the state provides an action for the aggrieved party, it may thereby supply all the procedural due process required, at least where a postdeprivation hearing is adequate. The Supreme Court, therefore, held in Daniels v. Williams (1986) that procedural due process protects only against deliberate, not negligent, state deprivations of protected interests. Even a deliberate state deprivation, as where a state official, "unauthorized" to do so, intentionally violates rights, may not require special procedures where there is nothing the state could have done to prevent random and unpredictable deprivations. Where, however, as in Zinermon v. Burch (1990), the state can institute predeprivation procedural safeguards to address a risk of deprivation—in other words, when the risk is reasonably predictable—it must do so.

Gary Goodpaster
(2000)