Property Deprivations and Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like the liberty interest,1 the concept of property rights has expanded beyond its common law roots, reflecting the Supreme Court’s recognition that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, in a case where household goods were sold under an installment contract and the seller retained title, the Court deemed the possessory interest of the buyer sufficiently important to require procedural due process before repossession could occur.2 In another case, the Court held that the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was a sufficient property interest to require some form of determination that the garnisher was likely to prevail.3 The Court has also ruled that the continued possession of a driver’s license, which may be essential to one’s livelihood, is a protected property interest.4

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts.5 Another relevant factor was the decline of the distinction between rights and privileges. Justice Oliver Wendell Holmes summarized the distinction in dismissing a suit by a policeman who had been fired from his job for political activities: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 6 Under that theory, a finding that a litigant had no “vested property interest” in government employment,7 or that some form of public assistance was “only” a privilege rather than a right,8 meant that no procedural due process was required before depriving a person of that interest.9 The reasoning was that, if the government was under no obligation to provide some benefit, it could choose to provide that benefit subject to whatever conditions or procedures it deemed appropriate.

There was some tension between the position that the government was free to attach conditions to benefits and another line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. That line of thought, referred to as the “unconstitutional conditions” doctrine, held that, “even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” 10 Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when Court largely abandoned the right-privilege distinction.11 By 1972, the Court declared that it had “fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process rights.” 12

Concurrently with the decline of the “right-privilege” distinction, the Court embraced a mode of analysis known as the “entitlement” doctrine, under which the Court erected procedural protections against erroneous deprivation of benefits the government had granted on a discretionary basis.13 Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights, and “natural rights.” Under a new “positivist” approach, the Court might find a protected property or liberty interest based on any positive statute or governmental practice that gave rise to a legitimate expectation. This positivist doctrine can be seen in the 1970 case Goldberg v. Kelly, where the Court held that the government must provide an evidentiary hearing before terminating welfare benefits because such termination may deprive an eligible recipient of the means of livelihood.14 In reaching that conclusion, the Court found that welfare benefits “are a matter of statutory entitlement for persons qualified to receive them.” 15 Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, the Court found that the recipient had a property interest entitling him to proper procedure before termination or revocation.

At first, the Court’s emphasis on the importance of statutory rights to the claimant led some lower courts to apply the Due Process Clause by weighing the interests involved and the harm done to a person deprived of a benefit. However, the Court held that this approach was inappropriate. It explained, “[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.” 16 To have a property interest in the constitutional sense, the Court held, it was not enough for a person to have an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit.17 The Court further explained that property interests “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 18

Consequently, in Board of Regents v. Roth, the Court held that a public university’s refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.19 By contrast, in Perry v. Sindermann, a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.20 The Court deemed “existing rules or understandings” to have the characteristics of tenure, and thus to provide a legitimate expectation independent of any contract provision.21

The Court has also found “legitimate entitlements” in situations besides employment. In Goss v. Lopez, an Ohio statute provided for free education to all residents between five and twenty-one years of age and required school attendance; thus, the Court held that the state had obligated itself to provide students some due process hearing rights prior to suspending them.22 The Court explained, “Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.” 23 The Court is highly deferential, however, to school dismissal decisions based on academic grounds.24

The more an interest differs from the traditional understanding of “property,” the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales, the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order an estranged wife obtained against her husband, despite having probable cause to believe the order had been violated.25 While noting statutory language that required that officers either use “every reasonable means to enforce [the] restraining order” or “seek a warrant for the arrest of the restrained person,” the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes.26 The Court also questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.27

In Arnett v. Kennedy, a majority of the Court rebuffed an attempt to limit the expansion of due process with respect to entitlements.28 The case involved a federal law that provided that employees could not be discharged except for cause. A minority of three Justices acknowledged that due process rights could be created through statutory grants of entitlements, but observed that the statute at issue specifically withheld the procedural protections the employee sought. Because “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,” 29 the employee would have to “take the bitter with the sweet.” 30 Thus, the minority would have held that Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required. The other six Justices, although disagreeing among themselves in other respects, rejected that reasoning. “This view misconceives the origin of the right to procedural due process,” Justice Lewis Powell wrote. “That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” 31

By contrast, in Bishop v. Wood, the Court accepted a district court’s finding that a policeman held his position at will, despite language setting forth conditions for discharge.32 Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, and the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett.

Subsequently, however, the Court held that, because “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action.” 33 The Court applied this analysis in Logan v. Zimmerman Brush Co., in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint.34 The commission inadvertently scheduled the hearing after the expiration of the 120 days, and the state courts held the requirement to be jurisdictional, requiring dismissal of the complaint. The Supreme Court noted that various older cases had clearly established that causes of action were property, and, in any event, the claim at issue was an entitlement grounded in state law and thus could only be removed “for cause.” That property interest existed independently of the 120-day period and could not be taken away by agency action or inaction.35

1: See Amdt14.S1.5.2 Liberty Deprivations and Due Process.
2: Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond).
3: Sniadach v. Family Fin. Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring).
4: Bell v. Burson, 402 U.S. 535 (1971) (holding that a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).
5: See Laurence Tribe, American Constitutional Law 685 (2d. ed) (1988).
6: McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892).
7: Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided court, 314 U.S. 918 (1951); Adler v. Bd. of Educ., 342 U.S. 485 (1952).
8: Flemming v. Nestor, 363 U.S. 603 (1960).
9: Barsky v. Bd. of Regents, 347 U.S. 442 (1954).
10: Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958).
11: See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). A number of early cases involved the imposition of conditions on admitting corporations into a state. Cf. W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981)) (reviewing the cases). Some more recent cases have continued to apply the right-privilege distinction. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971).
12: Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972).
13: The limitations were procedural and not substantive, meaning that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982).
14: 397 U.S. 254 (1970).
15: Id. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits).
16: Bd. of Regents v. Roth, 408 U.S. 564, 569–71 (1972).
17: Id. at 577.
18: Id.
19: Id. at 576–78.
20: 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest).
21: Id. at 601.
22: 419 U.S. 565 (1975). Cf. Carey v. Piphus, 435 U.S. 247 (1978) (measure of damages for violation of procedural due process in school suspension context). See also Bd. of Curators v. Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest implicated in academic dismissals and discipline, as contrasted to disciplinary actions).
23: Id. at 574. See also Barry v. Barchi, 443 U.S. 55 (1979) (horse trainer’s license); O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773 (1980) (statutory entitlement of nursing home residents protecting them in the enjoyment of assistance and care).
24: Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214 (1985). Although the Court “assume[d] the existence of a constitutionally protectible property interest in . . . continued enrollment” in a state university, it held that right is violated only by a showing that dismissal resulted from “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” Id. at 225.
25: 545 U.S. 748 (2005).
26: Id. at 759. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. The Court stated that such indeterminacy is not the “hallmark of a duty that is mandatory.” Id. at 763.
27: Id. at 764–65.
28: 416 U.S. 134 (1974).
29: Id. at 155 (Rehnquist and Stewart, JJ., and Burger, C.J.).
30: Id. at 154.
31: Id. at 167 (Powell, J., and Blackmun, J., concurring). See id. at 177 (White, J., concurring and dissenting); id. at 203 (Douglas, J., dissenting); id. at 206 (Marshall, Douglas, and Brennan, JJ., dissenting).
32: 426 U.S. 341 (1976).
33: Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
34: 455 U.S. 422 (1982).
35: Id. at 428–33. A different majority of the Court also found a denial of equal protection. Id. at 438.