The Due Process Clause, in Practice

Welcome to the Civil Procedure Podcast. This episode is about the due process clause in practice. We're not worried about the history or the theory of the due process clause here. Instead, we're focused on the practical application, what we would do on an exam or in practice with the due process clause. Now, in fact, there are two due process clauses. One is the Fifth Amendment and the other is the Fourteenth Amendment. They're identical in most respects. The Fifth Amendment provides that no person shall be deprived of life, liberty, or property interests without due process of law. The Fourteenth Amendment says that no state shall deprive any person of life, liberty, or property interests without due process of law. The easiest and most enduring way to get a grasp on these clauses is to think of them as causes of action with elements. And the two causes of action are identical in their framework with the exception of the first element. That's the only way in which they differ in their basic framing. The first element of a Fifth Amendment or a Fourteenth Amendment argument is that you need a governmental actor. And if you're bringing an action under the Fifth Amendment, the governmental actor needs to be the federal government. And if you're bringing an action under the Fourteenth Amendment, the governmental actor needs to be the state government. So again, bottom line, the first element for both of these types of due process claims, the Fifth Amendment and the Fourteenth Amendment, the first element is governmental actors only. So if Twitter suspends your account, Twitter is not a governmental actor. If your landlord refuses to return your security deposit, your landlord, presumably, is not a governmental actor. If your employer won't let you use any of your vacation days, presumably your employer is not a governmental entity. Now, of course, you might have causes of action against Twitter or your landlord or your employer, but those causes of action are not going to be due process problems, unless all of the elements of the cause of action are satisfied. And the first of the elements under the Due Process Clause is that you need this federal actor under the Fifth Amendment or a state actor under the Fourteenth Amendment. So if the state revokes your license to practice law, that's a state actor. If the President of the United States adds your organization's name to a terror watch list, that's a federal actor. So imagine it's a multi-state public-private partnership to develop a high-speed railway between Las Vegas, Nevada, and Los Angeles, California. And imagine that that multi-state public-private partnership doesn't allow your client to submit a bid on a project. Is a multi-state public-private transportation authority, is that a state actor? It's a question that would need to be researched. If your landlord takes advantage of a state procedure that allows them to get an accelerated eviction, well, if they use the court process to get this eviction on an accelerated basis, but they're a private landlord, is that a state actor? You've got a research question. The point here is not to answer these questions, but just for you to get the lay of the land. And the lay of the land on this first element of a due process claim is that you need a governmental actor. Fifth Amendment, federal, Fourteenth Amendment, state. Let's go on to the second element. The second element is that the plaintiff needs to be a person. The Fifth Amendment talks about no person. Fourteenth Amendment talks about any person. Some have tried to read person very narrowly to mean only natural persons, or even more narrowly still, to mean only American citizens. But it doesn't have those qualifiers on it. And so to the extent that person means person, well, that would include foreigners. That would include undocumented residents. That would include prisoners. And of course, you can see how the stakes are high, because by merely tweaking this element here, we can broaden the scope of the due process protection to include more individuals, more plaintiffs, more protection, or we can contract it right here by defining persons more narrowly so that it doesn't include particular constituencies. Efforts to expand the word have been quite successful, expanding the word to include juridical persons, which are these sort of fictional persons. Things like partnerships and corporations. Persons has been expanded to include those. We're not trying to chart the outer parameters of what constitutes a person or what constitutes a state actor in a first year civil procedure course. But we are trying to highlight what the basic elements are. And the second element here is this notion of persons. Non-human animals, for example, have not fared well. Cases filed on behalf of animals facing euthanasia, for example, not persons. Now the owner of the dog is presumably a person. Their due process rights can be violated, but not the dogs. Okay, so we have a basic sense of the first two elements. Now let's get a basic sense of the third and fourth elements of a due process claim. And these elements require a deprivation, that's one of the elements, of a life, liberty, or property interest. That's the other element. Let's do the life, liberty, or property interest first. Life interests don't show up very frequently in the civil context, but you can certainly imagine how they show up in the criminal context. The death penalty deprives someone of a life interest. Liberty interests are also commonly raised in the context of criminal cases, because liberty often refers to freedom from physical restraint. But there are civil cases involving liberty interests. Freedom from corporal punishment in a school, for example, might be a liberty interest. Or even just wandering around in society without having some severe interference of your honor or dignity. If that's the interest at issue, this idea that some state actor deprived you of some dignity interest, well then the parties would be fighting about whether that's the kind of liberty interest that the due process clause protects. The interest that you're most likely to see in a civil procedure course is the property interest. Property interests include money, so if you're being ordered to make some kind of payment, or if you're being required to forfeit some some of money, that's an interference with your property interest. If you're claiming some entitlement under some statutory regime or under some contract, or maybe it's a cause of action in a court, in any of these contexts the parties would be fighting about whether or not this is the kind of property interest that the due process clause protects. And now we can circle back to that other element here, which is the idea of a deprivation of that interest, is a person being deprived of that life, liberty, or property interest. Now that may seem obvious, and in a lot of cases, a lot of circumstances, it is obvious, but there is some nuance here that we want to make sure that we never overlook. And so we want to treat this element independently, even if oftentimes it's sort of a gimme. The deprivation can be tricky in some circumstances, like imagine, for example, that the property interest is a sum of money that is in a bank account that you have. So your name is on this bank account, so you have $15,000 in the bank, and some state government imposes some sort of a freeze on your access to that money. Certainly a property interest, you're a person, and I said it's a state actor. Boy, things are getting lined up here. But have you been deprived of that interest when they freeze the money in your bank account? Well, on one hand, the answer is an obvious yes. If you are about to withdraw that money to pay your tuition, well, then certainly that's a deprivation of a property interest. But let's imagine that you weren't going to withdraw that money. You didn't need the money. You had no intention of withdrawing the money. In fact, it might have even been irrational to withdraw that money. Let's imagine that it's in some account where you would have faced substantial penalties for early withdrawal. Under those circumstances, were you deprived of a property interest? Or imagine you didn't even know that the bank account was frozen. Were you nevertheless deprived of that interest? Another argument that parties make, usually unsuccessfully, but we're not trying to get the exact contours of the doctrine here. We're just trying to understand the lay of the land. But another argument that parties will sometimes make is that the party couldn't have been deprived of the interest because they weren't entitled to the interest in the first place. So imagine, for example, that it's some statutory benefit and the state actor is depriving somebody of that statutory benefit. Well, if we ultimately determine that the person wasn't entitled to the benefit, was there nevertheless a due process violation? Those are the kinds of arguments that you can expect to see under the element of deprivation. Now, that leaves only the fifth element and the reality is in a civil procedure course, that's where the attention is on this fifth element. And that is whether or not the procedures give the person who's been deprived of the interest the process that is dramatic pause due. Did they receive the due process? So understand our big picture here. When we get down to this fifth element, what we've said is that a state or a federal government actor is depriving a person of a life, liberty or property interest, which they can do. They can take your driver's license, they can close your restaurant, they can extinguish your cause of action for breach of contract, they can throw you in jail, they can even execute you. But when we get down to this fifth element, the due process clause says when a governmental actor is doing this kind of a deprivation, they must do it with certain procedural protections. Do the procedures that facilitate that deprivation of a life, liberty or property interest comply with the due process clause? So what is the criterion then? What kind of procedures are consistent or consonant with the due process clause and which would violate, which do not constitute due process? To answer that question, we have an old way, which is represented by the Goldberg versus Kelly case, and the new way, which is represented by the Matthews versus Eldridge case. The old way is to balance two things. On one hand, you ask how important is this interest that we're talking about? How big of a deal is this? How important is this interest to the plaintiff? And how important is this kind of thing to society generally? So on one side of the balance, we have this importance of the interest to the person and to society. And under Goldberg, we balanced that against the burden to society of giving whatever additional layer of procedure the plaintiff is demanding. If they're demanding a hearing before a restaurant can be closed or before you can have your driver's license revoked, well, then we talk about, well, what's the burden to society of giving hearings in those circumstances? And so the burden to society would be things like the cost. How many hearing officers would we need to hire? Would we need to purchase a bunch of buildings where these hearings would take place? How many administrators would need to be hired for this kind of a system? That's the cost to society. If instead the procedure that the plaintiff is demanding is translation into multiple languages, well, then the burden to society is, well, what would the cost be? How difficult would it be for the administrative infrastructure to accommodate multiple languages? That's the old test, which is important to us mostly only to emphasize the contrast or the alleged contrast with the new test. And so as a practical matter, what you would do on an exam or in practice today for a due process analysis here in this fifth element about what does the due process clause require would be the Matthews three-part test. And under the three-part test, part one is to analyze the private interest. What you do here is you ask and answer how big of a deal is it when a person is deprived of this interest? How big of a deal is it when somebody can't access $15,000 that is in a bank account? How big of a deal is it when somebody has their driver's license suspended? How big of a deal is it when a company has denied the ability to submit a bid on some government contract? How big of a deal is it if you're an organization that has been labeled as a terrorist organization by the federal government? What we do with this first part of the Matthews three-part test is we look back at what that private interest was that the plaintiff is being deprived, and we analyze whether that's big or small. Is that a big deal for somebody to suffer that deprivation? The second part of the Matthews test is to analyze the, if we're going to use the language of the court, the risk of erroneous deprivation. But let's put that in words that make more sense to us. What we want to do here in this second part of the test is to answer this question. How many mistaken deprivations are we going to be able to prevent by adding the additional layer of procedure that the plaintiff is asking for? So rather than using the fancy words risk of erroneous deprivation, what we're trying to figure out here is are we correcting errors by adding the procedure that the plaintiff is demanding? The key here is to avoid the mistake that too many students make. What you want to do when you're analyzing this second part of the test is to obsessively focus on exactly what procedure the plaintiff is demanding. What are they saying is missing from the current procedure? Is it a hearing? Is it that idea of translating into multiple languages? Is it something about the notice or the period of time, the deadlines that something is due? What exactly is the procedure that the plaintiff is demanding? You cannot do this second part of the math use test meaningfully without identifying and putting all of your attention into exactly the procedure that the plaintiff is demanding. Because what we're doing here in this second element is we're analyzing how many mistakes is this additional layer of procedure going to help us prevent. So if you're a plaintiff trying to win one of these due process arguments, what you want is a procedure that you can argue will correct. It will prevent. It will avoid mistakes. There are deprivations out there that can be avoided. So imagine, for example, people are having their bank accounts frozen. Restaurants are having their establishments closed. Organizations are being labeled terrorist organizations, and this is impactful upon those organizations. And by adding this additional procedure, whatever it might be, by adding this additional procedure, we are going to avoid mistaken deprivations. So we're going to wind up with a balancing test here too, where essentially math use factor number one gets multiplied by math use factor number two. So let's talk that through math use number one factor. We said was, well, how big of a deal is it when somebody suffers this deprivation? And factor number two says, here's the number of deprivations that are mistaken that our procedure will prevent. So number one multiplied times number two is the harm that's being done by the absence of this additional layer of procedure. And we can balance the product of math use factor one times factor number two against, we'll balance that product against math use factor three, because math use factor three tells us to consider what would this additional layer of procedure cost. So again, notice that you have to be obsessive about exactly what is the plaintiff saying is missing in the current procedure. What are they asking for a hearing, a translation, whatever it is that they're asking for, math use factor three says, what will it cost the government to provide that additional layer of procedure. So let's talk about this then in a situation we might imagine on an exam. Imagine that a state has a procedure that allows fast track foreclosure and eviction by banks. So the state develops some procedures so that lenders so that banks who aren't being paid can go through this accelerated process of foreclosing and evicting the tenants and the borrowers. Well, on an exam, you might imagine running through those early factors. Is that a state actor? Well, banks are private, but what did he say in that question? Well, he says it's this court process. Well, then you've got this question about whether the court process constitutes state action. Next element, do we have a person? Yeah, this is a borrower. This is a resident. Even if it's a company, I think he said that persons include corporations in partnership. Yep, you're right. It does. So persons, we have that. Do we have a deprivation of a property interest? Well, we've got somebody being thrown out of their house. That sounds like a deprivation of a property interest. Okay, then here we are finally then at the fifth element and the Matthews three part test. Well, what is it that this plaintiff is saying is missing from the current procedure from this fast track foreclosure? What is it that they're demanding by way of additional procedure? I'm going to need my eye on that when I do the Matthews three part test. But of course, the first factor of Matthews is, well, how big of a deal is it when somebody's evicted? How big of a deal is it for the house to be foreclosed upon and evicted? Is that something that's a huge deal? Is it an enormous inconvenience, a modest inconvenience? I might imagine thinking through here. Well, it's not life and death, but it might be an issue of a homelessness, which is rather existential. Seems like a pretty big interest here. Okay, so I can imagine pushing and pulling on that first of our three factor Matthews test. Second factor, risk of erroneous deprivation. Now, what is it that this plaintiff is complaining about is missing from this process? Maybe they want to slow it down and give the homeowner the chance to submit evidence of payments that they've made or to propose alternative structures, whatever the procedure is here. What we're going to do in the second factor of the Matthews test is to ask, okay, how many mistakes is that additional layer of procedure going to prevent? And this is where the contrast to the Goldberg versus Kelly, the old approach, comes into perspective. Because at least as caricatured, the old approach cared more about things that are beyond mere error correction. Processes are not just about avoiding mistakes. They're about making people feel valued and taken seriously, that they participated in a legitimate process, and that they have a certain amount of dignity. The caricature is to contrast Goldberg's emphasis on those soft procedural values with Matthews, which seems to have no obvious place for those values to be counted in the calculus. Judges who want to resist that caricature of the Matthews three-part test find numerous ways to do it. And one good way to do it is a nice transition to our third factor. The third factor in the Matthews three-part test is to consider the cost of the additional layer of procedure. A very orthodox approach to the Matthews three-part test would consider only the dollar cost of the additional layer of procedure. So if the plaintiff is demanding a hearing or a cooling off period or the translation or the opportunity to submit evidence or whatever it is that they're demanding, what is the cost of that additional layer of procedure? What is the cost of the government to provide hearings? The cost to provide the translation? The cost to have written submissions that need to be considered by somebody? Whatever that process cost is, the dollar value would show up here in the third factor. And in that orthodox approach to Matthews, the product of the first factor times the second is then balanced against the cost of providing that additional procedure. The judge who wants to resist that strict orthodox numerical approach to Matthews would say here in this third factor, well, there's a cost. Yeah, there's a dollar cost of providing translation in multiple languages or providing a hearing or adding this additional step. But we should deduct from that cost to society the benefit to society generally of having this sort of procedure present. The benefit not just in correcting errors or avoiding errors, but the benefit in just treating people with a certain level of dignity, giving them the ability to participate in a process. So if the additional procedure was translation into multiple languages, for example, it might be that the value of providing the materials in multiple languages conveys a sense of inclusiveness and respect for diversity. And even if the translations don't correct errors or avoid errors, the idea would be that there could be some social value and whatever that value is could be deducted from whatever the social cost is in this third part of the Matthews three-part test. To the extent that you are wondering how on earth a judge would ever deduct this intangible social benefit of something like feelings of inclusivity, that intangible, how would a judge deduct that from the tangible dollar cost? You're raising an argument that many scholars have made. And the idea is that whenever these numerical, mathematical frameworks are purported to just give guidance, the problem with them in the eyes of many is that things that can be calculated tend to be taken more seriously, given more gravity in the calculus than those things that can't be reduced to numbers. This lecture has focused on what is referred to as procedural due process. It's evaluating the appropriateness of the procedure for governmental actions that deprive persons of certain interests. There is a parallel universe here that emanates from these same due process clauses. And that parallel universe is called substantive due process. The difference is that the due process clause in those instances is used not to check the process, but rather the outcomes of those processes. And the distinction here can be elusive. You'll see it in civil procedure in the land of personal jurisdiction, where there is something called substantive due process. But substantive due process is really a doctrine that you'll learn mostly in constitutional law. So this concludes our overview of procedural due process. Five elements using either the Fifth Amendment or the Fourteenth Amendment, with that Fifth Element being the Matthews three-part test. And when you're doing the Matthews three-part test, a couple of things to keep in mind. Remember one, you can be very orthodox about it and stick strictly to the numbers, or you can stray inspired by Goldberg and find ways for those incalculable values to sneak in. And then the second thing I want you to remember when you're doing that Matthews three-part test is to make sure that you're focused on exactly what the additional layer of procedure that the plaintiff is seeking, because you cannot do the second and third steps of the Matthews test without knowing exactly for what the plaintiffs are asking. That concludes this episode of the Civil Procedure Podcast. Have a good day! [BLANK_AUDIO]