Due Process – What is it?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

Due process of law is one of the most fundamental aspects of our legal system in America. Due Process can trace its roots back to the Magna Carta. The Magna Carta was the first English document that limited the arbitrary power of government. Due Process affords citizens the right from the government in depriving anyone of life, liberty, or property without the opportunity to be heard at a meaningful time and in a meaningful manner. There exists two types of Due Process – Procedural and Substantive.

Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (Fla. 2nd DCA 2011). Additionally, procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Id. As you may be aware, agencies such as the DMV, FWC, etc., often jokingly considered the fourth branch of government, are held to this standard as they are within the executive branch. As such, whenever you are having your license suspended by the DMV, for instance, because of a refusal in a breath test DUI case, you are afford the right for a formal review hearing before your license suspension can be upheld; unless you waive that right. Spoiler alert – hearing officers or those within agencies that preside over your hearing (giving you the constitutional bare minimum due process) are not trained in law and are just employees of the agency. It doesn’t take a brilliant mind to determine the typical outcome of these hearings.

Most often, there are no rules of evidence in these types of agency hearings, or the rules are barely adhered to, and it isn’t conducted in a manner which would be consistent with a court of law. The term most often used for these proceedings is a “kangaroo court.” Their rulings are suU.S. Constitutionbject to appeal but are rarely overturned. However, it does afford you the bare minimum due process of law as required by both the U.S. Constitution and the Florida Constitution. The great benefit of these hearings are in the vein of judicial economy. Courts have limited resources (namely, time) and the idea is to have certain matters heard by agencies as long as the agencies have the proper legal rules and principles – their authority must be consistent with constitutional constraints and legislative intent. However, a more detailed discussion on this topic would delve into the complex area of administrative law.

Substantive due process is distinguished from procedural due process. The substantive component of the Due Process Clause of law acts to limit state authority to enact measures that impinge on fundamental rights, even if enacted with appropriate procedural safeguards. Brandon-Thomas v. Brandon-Thomas, 163 So.3d 644, 646 (Fla. 2nd DCA 2015). Substantive due process protects the full panoply of individual rights from unwarranted encroachment by the government. Haire v. Florida Dept. of Agriculture and Consumer Services, 870 So.2d 774, 781 (Fla. 2004). Substantive due process prohibits the government from infringing on fundamental constitutional liberties. Where as, procedural due process applies to the manner in which law is administered, applied, or enforced. This means that procedural due process is connected to the hearings and right to be heard, i.e. formalities. Substantive due process concerns itself with acts that government must refrain from regardless of the fairness of the procedures used to implement them. This is best explained in that the government passes a statute which violates a fundamental right that no matter what procedural steps are taken to assure a fair hearing, the statute would not be a valid law. The key between the two is whether there is a formal shortcoming or because the substance of the law violates a fundamental right or fairness and as such cannot claim to be the law.

Due process of law can be a fairly complex legal issue and is most often litigated within the realm of administrative law. However, due process of law touches every corner of our legal system. Due process of law is vitally important to the goal of justice and fairness. This was first fleshed out in the Magna Carta but was then a foundational building block of the creation of our country and legal system.

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