• What is “due process” and does it apply to me?

    Date: 10.20.10 | by Judge Tom.

    The phrase “due process of law”  is your constitutional right under the 14th Amendment to be notified of any charge filed against you by the government and an opportunity to respond.  Due process applies in both civil and criminal cases.  It also applies to you at school.

    School:  Every state has it’s own laws regarding education and the school system.  If you are suspended or expelled for breaking a school rule, you have a right to know why the discipline was imposed and an opportunity to explain your side of the incident.  In serious situations (usually resulting in a suspension of more than 10 days*) you can request a hearing before the school board and be heard.  Shorter suspensions usually aren’t granted hearings and courts have approved this practice.  Due process continues beyond the first hearing.  If you lose before the school board, you can pursue your claim at the district level and then by filing a lawsuit in court.

     

    Photo by SteakPinball (Flickr)

    Criminal: 

    If you are charged with an criminal offense, due process requires that you be advised of the charges, the right to an attorney in some cases, and the right to plead guilty or not guilty.  If you plead not guilty, the state must prove its case against you beyond a reasonable doubt.  You will have a chance to examine the state’s witnesses and present your own witnesses in your defense.

    Civil:  If you are sued for a traffic accident or property damage, for example, due process requires that you be served with a copy of the complaint.  You are given time to respond and present your position regarding the incident.  If the case goes to trial you will have the same opportunity to examine the plaintiff’s witnesses and call your own.

    In 1998, the U.S. Supreme Court made it clear that “The touchstone of due process is protection of the individual against arbitrary action of government.”  County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708 (1998).

    *Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592 (1988): “. . .where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays.”).

    Judge Tom

    This post was written by Judge Tom. Judge Tom is the founder and moderator of AsktheJudge.info. He is a retired juvenile judge and spent 23 years on the bench. He has written several books for lawyers and judges as well as teens and parents including the recently published 'Teen Cyberbullying Investigated' (Free Spirit Publishing). When he's not answering teens' questions, Judge Tom can be found hiking, traveling and reading.

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