{"id":30915,"date":"2022-07-27T13:58:51","date_gmt":"2022-07-27T18:58:51","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment5\/annotation06.html"},"modified":"2022-07-27T13:58:51","modified_gmt":"2022-07-27T18:58:51","slug":"annotation06","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment5\/annotation06.html","title":{"rendered":"Procedural Due Process Under the Fifth Amendment"},"content":{"rendered":"\n
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Procedural Due Process Under the Fifth Amendment<\/h1>\n
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\n By FindLaw Staff<\/a> | Legally reviewed by Laura Temme, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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The Fifth Amendment states, among other things, that the government cannot deprive someone of their life, liberty, or property without following certain procedures. This is known as "due process," which is further broken down into two concepts: procedural due process and substantive due process. <\/p>\n\n <\/div>\n\n

The Fifth Amendment’s due process clause reads:<\/p>\r\n

\u201cNo person shall\u2026be deprived of life, liberty, or property, without due process of law;"<\/i><\/p>\r\n

Frequently Asked Questions<\/h2>\r\n

What does due process require?<\/h3>\r\n

The courts have tolerated different types of procedures \u201cappropriate to the nature of the case,\u201d but in general due process requires two things:<\/p>\r\n

    \r\n
  1. Notice<\/li>\r\n
  2. A hearing before an \u201cimpartial tribunal\u201d<\/li>\r\n<\/ol>\r\n

    In certain types of cases, due process also requires an opportunity to confront and cross-examine witnesses. The right to an attorney is also considered a part of due process. The notice must be \u201creasonably structured\u201d so someone can understand what the government plans to do. But, it doesn\u2019t have to outline the whole legal process. In addition, not all situations require a hearing in court. The hearing might take place before an administrative panel, such as a state licensing board. <\/p>\r\n

    Is due process required in non-criminal cases?<\/h3>\r\n

    Yes, but not all approach due process in the same way. Civil and criminal court proceedings must follow certain due process rules, but administrative cases don\u2019t. It generally depends on the interests or rights at stake.<\/p>\r\n

    What It Means<\/h2>\r\n

    United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation<\/i><\/b><\/p>\r\n

    In 1855, the Court first attempted to assess its standards for judging what was due process. At issue was the constitutionality of summary proceedings under a distress warrant to levy on the lands of a government debtor. The Court first ascertained that Congress was not free to make any process due process. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. A survey of history disclosed that the law in England seemed always to have contained a summary method, not unlike the law in question, for recovering debts owed the Crown. Therefore, [t]ested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law.1<\/sup><\/p>\r\n

    This formal approach to the meaning of due process could obviously have limited both Congress and the state legislatures in the development of procedures unknown to English law. But when California\u2019s abandonment of indictment by grand jury was challenged, the Court refused to be limited by the fact that such proceeding was the English practice and that Coke had indicated that it was a proceeding required as the law of the land. The Court in Murray\u2019s Lessee<\/i> meant that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. To hold that only historical, traditional procedures can constitute due process, the Court said, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement.2<\/sup> Therefore, the Court concluded, due process must be held to guarantee not particular forms of procedures, but the very substance of individual rights to life, liberty, and property. The Due Process Clause prescribed the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.3<\/sup><\/p>\r\n

    Although due notice and a reasonable opportunity to be heard are two fundamental protections found in almost all systems of law established by civilized countries,4<\/sup> there are certain proceedings in which the enjoyment of these two conditions has not been deemed to be constitutionally necessary. For instance, persons adversely affected by a law cannot challenge its validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view. Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.5<\/sup><\/p>\r\n

    Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general application affecting an unknown number of persons, it need not afford a hearing prior to promulgation.6<\/sup> On the other hand, if a regulation, sometimes denominated an order, is of limited application, that is, it affects an identifiable class of persons, the question whether notice and hearing is required and, if so, whether it must precede such action, becomes a matter of greater urgency and must be determined by evaluating the various factors discussed below.7<\/sup><\/p>\r\n

    One such factor is whether agency action is subject to later judicial scrutiny.8<\/sup> In one of the initial decisions construing the Due Process Clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized the collector\u2019s property, affording him no opportunity for a hearing, and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings in which pleas, answers, and trials were requisite before property could be taken, the Court observed that the distress collection of debts due the crown had been the exception to the rule in England and was of long usage in the United States, and was thus sustainable.9<\/sup><\/p>\r\n

    The Matthews<\/i> Test<\/b><\/h2>\r\n

    The requirements of due process, as has been noted, depend upon the nature of the interest at stake, while the form of due process required is determined by the weight of that interest balanced against the opposing interests.10<\/sup><\/a> The currently prevailing standard is that formulated in Mathews v. Eldridge<\/i><\/a>,11<\/sup> which concerned termination of Social Security benefits. Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government\u2019s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.<\/p>\r\n

    The termination of welfare benefits in Goldberg v. Kelly<\/i><\/a>,12<\/sup> which could have resulted in a devastating loss of food and shelter, had required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews<\/i> would require less protection, however, because those benefits are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg<\/i>. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, a post-termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.13<\/sup><\/p>\r\n

    Application of the Mathews<\/i> standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. Earlier cases, which had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring pre-deprivation hearings. Newer cases, however, look to the interests of creditors as well. The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.14<\/sup><\/p>\r\n

    Thus, Sniadach v. Family Finance Corp<\/i><\/a>.<\/i>,15<\/sup> which mandated pre-deprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.16<\/sup> Fuentes v. Shevin<\/i><\/a>,17<\/sup> which struck down a replevin statute that authorized the seizure of property (here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited,18<\/sup> so that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.19<\/sup> Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor\u2019s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.20<\/sup><\/p>\r\n

    Similarly, applying the Mathews v. Eldridge<\/i> standard in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.21<\/sup> Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.22<\/sup> In other cases, hearings with even minimum procedures may be dispensed with when what is to be established is so pro forma or routine that the likelihood of error is very small.23<\/sup> In a case dealing with negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.24<\/sup><\/p>\r\n

    In Brock v. Roadway Express, Inc<\/i><\/a>.<\/i>,25<\/sup> a Court plurality applied a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency to reinstate a whistle-blower employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee\u2019s charges, and to have an opportunity for informal rebuttal. The principal difference with the Mathews v. Eldridge<\/i> test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer in controlling the makeup of its workforce and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.26<\/sup><\/p>\r\n

    A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David<\/i><\/a>,27<\/sup> a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected\u2014the temporary loss of the use of the money\u2014could be compensated by the addition of an interest payment to any refund of the fee. Further factors considered were that a 30-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would be administratively burdensome for the city.<\/p>\r\n

    In another context, the Supreme Court applied the Mathews<\/i> test to strike down a provision in Colorado’s Exoneration Act.28<\/sup> That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction.29<\/sup> The Court, noting that [a]bsent conviction of crime, one is presumed innocent,30<\/sup> concluded that all three considerations under Mathews<\/i> weigh[ed] decisively against Colorado’s scheme.31<\/sup> Specifically, the Court reasoned that (1) those affected by the Colorado statute have an obvious interest in regaining their funds;32<\/sup> (2) the burden of proving one’s innocence by clear and convincing evidence unacceptably risked erroneous deprivation of those funds;33<\/sup> and (3) the state had no countervailing interests in withholding money to which it had zero claim of right.34<\/sup> As a result, the Court held that the state could not impose anything more than minimal procedures for the return of funds that occurred as a result of a conviction that was subsequently invalidated.35<\/sup><\/p>\r\n

    In another respect, the balancing standard of Mathews<\/i> has resulted in states’ having wider flexibility in determining what process is required. For instance, in an alteration of previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.36<\/sup> Thus, the Court, in passing on the infliction of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment was administered (i.e.<\/i>, the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would not be punished without cause or excessively.37<\/sup> The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.38<\/sup><\/p>\r\n

    The Court has required greater protection from property deprivations resulting from operation of established state procedures than from those resulting from random and unauthorized acts of state employees,39<\/sup> and presumably this distinction still holds. Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is the state system itself that destroys a complainant\u2019s property interest.40<\/sup> Although the Court briefly entertained the theory that a negligent (i.e.<\/i>, non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,41<\/sup> the Court subsequently overruled this holding, stating that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.42<\/sup><\/p>\r\n

    In rare and extraordinary situations, where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a later full hearing.43<\/sup> Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer,44<\/sup> collection of governmental revenues,45<\/sup> and the seizure of enemy property in wartime.46<\/sup> Thus, citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short-order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the five-to-four decision is unclear.47<\/sup> On the one hand, the Court was ambivalent about a right-privilege distinction;48<\/sup> on the other hand, it contrasted the limited interest of the cook\u2014barred from the base, she was still free to work at a number of the concessionaire\u2019s other premises\u2014with the government\u2019s interest in conducting a high-security program.49<\/sup><\/p>\r\n

    More on the Fifth Amendment<\/h3>\r\n