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Circumstances change the level of due process

Editor's note: This is the second in a series of commentaries by members of the Hernando County Bar Association, in celebration of National Law Week.

The Due Process Clause in the U.S. Constitution reads: "Nor shall any state deprive any person of life, liberty or property without due process of law." Exactly what does "due process of law" mean? What rights does it provide to people and what obligations does it require from government?

Essentially, due process requires notice and an opportunity to be heard. It means that the government must indicate some justification or cause for its actions, and must give attention to, and take seriously, the response or position of the person affected. When any legal action is taken by the government, the first step is to identify the government's authority or reason for its actions.

For instance, in sentencing a criminal to the death penalty, the governmental interest is to punish and prevent serious crime; in removing a child from his home and the custody of his parents, the governmental interest generally is to protect the child from abuse or neglect.

The second step is to determine how much process is due in any given situation. The key concept here is that due process is not a rigid set of identical rules for all situations, but flexible procedures varying with the facts and issues. Basically, due process depends on an assessment of the balance between the degree of the loss a person could possibly suffer and the importance of the government's interest.

The next consideration is what procedure or safeguards are provided by the government in the way of justifications and opportunity to respond, and whether they are adequate. Possible procedures may include the right to a free or retained lawyer, a formal and public trial, the opportunity to call witnesses, file an appeal, be judged by an impartial jury, bail, statement of rights (e.g., Miranda warnings), etc.

Due process also provides certain protections when the government tries to take away a benefit or other interest; and the protections required by due process depend on the balance of the factors set out therein. For instance, in case of welfare, employment or Social Security benefits in which the recipient is dependent upon the benefits for his or her livelihood, the protections required are substantial. Withdrawal of such benefits usually requires an administrative hearing, with adequate notice and the ability to present evidence and cross-examine adverse witnesses, before benefits may be terminated.

Similar protections are provided for other significant interests, such as removing children from families, which may only be done on an emergency basis when there is reasonable belief that the child is in immediate danger and removal is necessary; and then a formal hearing must be conducted, the government must determine if it can provide appropriate services to assist the family, and the child may be removed only if it cannot otherwise be protected.

In other situations, where the deprivation of a constitutionally protected interest is less severe, protections are correspondingly less. In the case of a suspension from school for less than 10 days, fore example, the school authorities need only provide the student with notice of the charge and evidence against him and to listen to the student's version of the story, before the suspension.

In simpler terms, the greater the harm or loss of constitutionally protected interest, the more stringent and structured the due process protections. But it is imperative to remember that every situation, every set of issues, and every case is different. If confronted with a situation where you feel your due process rights have been denied, it is imperative to seek legal assistance immediately, to determine whether there is basis for your concern.

The Constitution guarantees certain protections. But if there are any questions, it is suggested you turn to a lawyer to guide you through the intricate trials and tribulations of constitutional law.

_ Gerrie Bishop is the trial court law clerk for the 5th Judicial Circuit in Brooksville. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper.

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