Due Process

When someone speaks of due process, or receiving their "due", they are usually talking about something that they feel is rightly entitled to them. In fact, that is precisely the historical meaning of due process. Ever since antiquity, every society has had some concept of it. That's because the notion of due process varies from society to society. The basic idea remains constant, but how much a person feels rightly entitled to depends on the historical and cultural context in which they live.
In United States law, due process (more fully due process of law) is the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty.
Text in the Fifth and Fourteenth Amendments
“No person shall be ... deprived of life, liberty, or property, without due process of law....”
“No State shall ... deprive any person of life, liberty, or property, without due process of law....”
Procedural due process basics
Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of proceedings involving him, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.
Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do. It requires being level-headed, uniform and regular, when all around you is prejudice, corruption, or the desire of an angry mob to see justice done. Fairness requires breadth and depth. Not only does the outcome have to be fair, but so does everything along the line such as evidence gathering and presentation.
Substantive due process basics
Most courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in ordered liberty." Just what those rights are is not always clear. Some of these rights have long histories or "are deeply rooted" in our society.
Judicial review of substantive due process violations
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. A law is more likely to survive constitutional challenges under rational basis scrutiny than under strict scrutiny.
Define the Problem
The City Council makes decisions which fall within one of the following categories: legislative and adjudicative/administrative.
In the legislative category, the City Council makes decisions relating to general rules, regulations and procedures without rendering a decision relating to a particular policy. In taking a legislative action, the City Council will usually conduct a public hearing and thereafter determine an addition, deletion or change to the standards contained in the Municipal Code.
In the adjudicative category, the City Council considers a particular issue, usually in response to a complaint. In rendering an adjudicative decision, the City Council must apply the provisions of the law in accordance with the City Council’s authority and make determination relating to the individual’s rights.
Procedural and Substantive Requirements In making adjudicative decisions, the City Council must satisfy the requirements of procedural due process and substantive due process. Procedural due process requires that the City Council give reasonable notice of the hearing to people who have a significant interest that may be impacted by the adjudicative decision.
Further, interested persons must be given an opportunity to be heard at the public hearing. The hearing to consider the charges must be conducted in accordance with procedures that are fair to all persons. The length of the process should also be paced so as to be fair to all persons.
Substantive due process requires that when the charges are being considered, the City Council is fair, impartial and unbiased. Each Council member should avoid saying or doing anything that may give the appearance that the Council member has made up his/her mind prior to the close of public input portion of the process. Conclusionary statements regarding the proposed project should not be made until the City Council is deliberating the matter at the proper point in the process as set in the law.
Also, substantive due process requires that the City Council’s adjudicative decision not be arbitrary or unreasonable. An adjudicative decision is justified if it has a substantial relationship to a public interest (such as health, safety or welfare) and correctly applies the standards of the City. If the decision impacts the exercise of a First Amendment right (speech or religion), the City Council must demonstrate that the impact of the decision is justified by a compelling public interest and is no more impactful on the First Amendment right than is absolutely necessary.
Select the Criteria
In order to protect persons from the unjustified deprivation of life, liberty, or property by the government, there must be some method by which they can contest the means by which the government proposes to deprive them of protected interests; i.e., they must be afforded procedural due process. Questions may arise concerning the adequacy of the procedures provided to contest the deprivation of a protected interest. While the exact procedures appropriate to one set of facts may not be required under differing circumstances, there are certain fundamental or basic aspects of procedural due process that should be considered:
1. Notice. Sufficient notice should be given in order to apprise interested parties of the pendency of the action, afford them an opportunity to present their objections, and enable them to determine what is being proposed and what must be done to protect their interests.
2. Hearing. Individuals cannot be deprived of property or liberty interest unless they are provided some form of hearing in which they will have the opportunity to be heard.
3. Impartiality. In order to provide procedural due process to an individual who may be subject to a deprivation of his or her interests, it is important not only that a hearing be provided, but also that the tribunal or decision maker not be predisposed against the individual. An impartial decision maker is considered to be essential.
4. Counsel. An individual should be permitted to be represented and assisted by counsel, although it is not necessarily required that counsel be provided to one unable to afford his own. Generally speaking, an indigent has an absolute right to appointed counsel only where he may lose his physical liberty if he loses the adjudication.
5. Evidence. Especially in cases where a decision rests on questions of fact, it may be necessary to provide an individual not only with the ability to confront and cross-examine adverse witnesses, but also the opportunity for discovery, i.e., investigation and accumulating evidence, in order to give him or her a chance to show that the facts upon which the proposed deprivation is based are untrue.