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:
- 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.
- 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.
- 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.
- 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.
- Evidence. Especially in cases where a decision rests on questions of fact, it may be necessary to provide an individual with not only the ability to confront and crossexamine 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.
- Decision. Although a full opinion or formal findings of fact and conclusions of law may not be required, the tribunal should provide the reasons for its decision and indicate the evidence upon which it was based.
Substantive Due Process
In addition to the requirement that municipalities provide “procedural due process,” municipalities also are impacted by the correlative doctrine of “substantive due process.”
Substantive due process involves a right that the courts have construed as being derived from the protections afforded by the Fifth and Fourteenth Amendments to the United States Constitution and the Declaration of Rights or Article I of the Pennsylvania Constitution. It is meant to ensure that a person’s life, freedom or property cannot be taken without appropriate governmental justification.
The substantive due process requirement for appropriate justification exists independently from the procedural due process requirement that there be constitutionally adequate procedures through which an individual can protest the government action; i.e., the right to substantive due process does not depend on the fairness of the procedures provided to challenge the government’s action.
If government action is taking away something of value that could be considered “life,” “liberty” or “property,” then, regardless of the procedures used, the questions remain concerning whether the goal being pursued by the government constitutes a valid state interest, and whether there is a sufficient relationship between the means being used to reach that goal and the goal itself.
There are different tests for substantive due process, depending on whether fundamental or nonfundamental rights are involved:
- In the case of governmental action impairing fundamental rights (e.g., the rights to marry, to have children, to direct the education and upbringing of one's children), a strict scrutiny test is used. The strict scrutiny test requires that, if government action impairs a fundamental right, the objective being pursued by the government must be “compelling” and not merely “legitimate.” The strict scrutiny test also requires that the means chosen to achieve that compelling end must be “necessary”; i.e., there must not be any less restrictive means that would do the job just as well.
- In the case of governmental action impairing nonfundamental rights (e.g., nearly all economic and “social welfare” regulation), the “mere rationality” test is used. This “mere rationality” or rational basis test requires that the government is pursuing a legitimate objective (e.g., most economic and social welfare regulation), and that it do so with a means that is rationally related to that objective.