Amendment V

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Procedural due process

The extent of procedural due process protections depends on three factors: (1) the way in which the state has acted, (2) the sort of individual interest that the state has infringed, and (3) the type of process the individual should receive (balancing the government's and the individual's interest).

When process is required

The nature of state action

The Amendment, or Amendment XIV as applied to the states, requires notice and a hearing if the state deprives a person of a common-law property right through "adjudication," but not if the state is "legislating." Compare [Londoner v Denver] (hearing required where board decided to pave individual street and tax residents to pay the costs) with [Bi-Metallic Investment v State Board of Equalization] (no hearing required where agency assessed tax hike on all property in the area).

There are three basic justifications for the distinction: (1) government could not function if every action affecting property rights required individual determination, (2) judicial review may provide procedural protection, at least if the hearing created a record (which happened in Bi-Metallic but not in Londoner) and (3) the proper means to combat poor "legislating" is through the polls.

What rights are protected

While Amendment V has been consistently interpreted to protect common-law property rights, see [Londoner v Denver] (liens placed on homes to satisfy tax judgment), courts originally drew a distinction between common-law "rights," which required process, and "privileges" granted by government, which required no procedural protection. See, for example, [Bailey v Richardson] (rejecting procedural claim by government employee fired on suspicion of Communism without a hearing, on the ground that government employment was a "privilege," not like a contract, and that the employee could claim no protection).

However, in [Goldberg v Kelly], the Court recognized so-called "new property" interests created by state action. [Goldberg v Kelly] (extending procedural protection to recipients of welfare). In order to claim such a right, an individual must have a "legitimate claim of entitlement" to that property; the legitimacy of entitlement depends on the amount of mutual understanding or explicitness with which such entitlement was granted. Compare [Perry v Sindeman] (finding that untenured professor had property interest in being rehired, where university had no tenure, but manual said that the college "wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory") with [Board of Regents v Roth] (untenured professor had no property interest in being rehired, where there was a tenure track for other positions, which the plaintiff was not on, and where rehire was explicitly left to the discretion of the board). The source of a "new property right" must lie in something other than the due process clause that restricts the discretion of officials. It has to make the interest look entitlement-like by narrowing the grounds upon which official may take it away—i.e., the government has limited its own ability to deprive persons of the entitlement.

Note also the debate in [Arnett v Kennedy] whether if, since the legislature can create rights that are then protected by Constitutional guarantees of process, the legislature can also take those rights away. Compare [Arnett v Kennedy] (Rehnquist plurality) (arguing that people holding statutory entitlements must "take the bitter with the sweet") with [Arnett v Kennedy] (arguing that procedural protections derive "not from legislative grace, but by constitutional guarantee"). Note that a majority of justices rejected Rehnquist's "bitter with the sweet" theory in [Arnett v Kennedy]; Rehnquist's argument, while apparently consistent with the new-property argument of [Goldberg v Kelly], may perhaps render "due process" and "property" in the text of the Amendment. However, recent decisions imply that legislatures might after all be able to restrict the procedural protections of the entitlements they create. See [American Manufacturers v Sullivan] (holding that employers claiming medical benefits had to first show that their claim was "reasonable" and "necessary" before they could claim procedural protections against the deprivation of those benefits); cf. [Goldberg v Kelly] (arguing that everyone had a right to at least apply for welfare benefits).

How much process is due to protected interests

Judges usually approach the question of how much process is due in terms of the extent to which an administrative proceeding must adopt the panoply of procedural formalities found in court trials. Further, satisfaction of one basic requirement (e.g., impartial decisionmaker) may advance due process objectives as much as several alternative requirements (e.g., formal hearing, record, and findings where decisionmaker is not impartial).

[Mathews v Eldridge] employs a three-factor balancing test to determine the right amount of process:

The private interest that will be affected by agency action.
The risk of an erroneous deprivation of such interest through the procedures used (considering their fairness and reliability), and the probable value, if any of additional or substitute procedural safeguards.
The government’s interest, including the function involved and any fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[Mathews v Eldridge] (holding that an evidentiary hearing is not required by Amendment V prior to the termination of disability benefits)

Examples of applying the Mathews test:

• [University of Missouri v Horowitz] (no additional process was due to student dismissed from medical school for bad performance and hygiene (!), where student had chance to talk with dean and other officials, on the grounds that academic judgments were inherently "subjective and evaluative" and "anot readily adapted" to judicial decisionmaking).
• [Schweiker v McClure] (concluding that a government employee is nor required to review denial of Medicare Part B claims because the statute required that the carrier-selected hearing officer be qualified and have a thorough knowledge of Medicare so the extra value of having a government decisionmaker was not great).
• [Gray Panthers v Schweiker] (review of denial of a Part B claim less than $100 requires some sort of oral procedure and meaningful explanation of the reasons for whatever action is taken on the claim, so as to avoid depersonalization of claimants and prevent arbitrary action; note that on remand, telephone system for talking with caseworkers was held sufficient).
• [Cleveland Board of Education v Loudermill] (tenured public employees are entitled to oral or written notice of charges against him, explanation of the employer’s evidence, and opportunity to present his side of story before termination, since that would be "the only meaningful opportunity" for the board to exercise discretion, and that allowing hearing before termination would not add much administrative cost, and that the government's interest in quickly firing someone was low, given that "(i)t is preferable to keep a qualified employee (rather than) train a new one").
• [Walters v National Association of Radiation Survivors] (upholding informal hearing for disability benefits, where all reasonable doubts were resolved for the claimant, nobody argued against the claimant, and the claimaint could get free representation, but where a claimant could not hire a lawyer to represent him at the hearing for more than $10, arguing that introducing lawyers would raise administrative costs, including opposing government counsel, and that the probability that an attorney would reduce error was not large enough to outweigh the cost of more adversarial procedure, including the likelihood that less money would reach claimants)

Note that only in [Goldberg v Kelly] (welfare benefits) has the Court ever used the Mathews test to require a full evidentiary hearing.

[alias: procedural due process]

8 page(s) referring to Amendment V
Constitution
Steel Seizure Case
strict liability crime
mental competency
civil commitment
Phillips Petroleum Co v Shutts
class action
executive immunity

0 page(s) referred to by Amendment V

[alias: new property]