As a lawyer representing Dr. Jones, you would obviously prefer to win on substantive as opposed to procedural due process grounds. A substantive due process victory will preclude the state from revoking your client’s license even if she violated the statute. By contrast, a procedural due process argument will simply afford your client a chance to be heard and to show that the state was mistaken concerning her conduct. Nevertheless, a procedural due process challenge is still of value, for if your client is given an opportunity to present her side of the story, she may be able to persuade the government to change its mind.
Procedural due process is not triggered when the government acts in a legislative capacity—i.e., when it enacts or adopts a particular rule or policy. Rather, procedural due process comes into play only when the government acts in an adjudicatory capacity—i.e., when it applies that rule or policy to specific individuals. Thus, if a state welfare department issues a regulation providing that no one may receive welfare benefits for more than two years, procedural due process does not give welfare recipients or anyone else a constitutional right to be heard in connection with the adoption of the regulation. At this legislative or rulemaking stage, fairness and due process are protected in other ways, such as through the right to vote, the right to petition government, and the freedoms of speech and press. However, if the state later seeks to enforce the two-year rule by terminating those who have been on the rolls for the maximum allowable time, those threatened with termination have a procedural due process right to notice and an opportunity to be heard to prevent unfair or mistaken deprivations of benefits.
There are three major steps in analyzing a procedural due process problem:
In the balance of this chapter, we will explore each of these steps of the procedural due process analysis. We will also look at the related doctrine of irrebuttable presumptions. However, we will not focus on the procedural due process protections that attach to life, as this subject is covered in courses dealing with criminal procedure.
Liberty interests that are entitled to procedural due process protection may stem from a variety of sources, including the Constitution, statutes, regulations, and simply official custom and practice.
All the constitutional liberty interests that qualify as liberties for purposes of substantive due process are likewise protected as a matter of procedural due process. See Chapter 2. These include fundamental liberty interests, such as freedom of speech and the right of privacy, as well as “garden variety” liberty interests, such as the liberty to contract and the freedom to pursue a trade. While fundamental liberties and “garden variety” liberties are treated quite differently under substantive due process, they stand on equal footing when it comes to triggering the right to procedural due process. Thus, in Example 5-A above, when the state revoked Dr. Mary Jones’s license to practice medicine, this impaired her liberty interest to practice her profession; though this interest receives little meaningful protection as a matter of substantive due process, its impairment is sufficient to trigger Dr. Jones’s procedural due process right to notice and an opportunity for a hearing.