Deprivation of Property


The Constitution clearly requires that the government must provide due process before it deprives a person of real or personal property. The issue that is most often in dispute in this context is whether a person has a property interest in a government benefit. The Supreme Court, in Roth v. Board of Regents (1970), noted that, “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim or entitlement to it.” Hence, the key to whether a person has a property interest in a benefit is whether that person is entitled to the benefit.

In order to determine whether a person is entitled to a benefit, courts generally consider the terms under which the government has offered the benefit. If a government employee has a reasonable expecta-tion that he or she will continue to receive a benefit, then the person may successfully assert that he or she has a recognized property interest in the benefit. For instance, a public employee who holds a position that is terminable at the will of either party does not generally have a property interest in that position. Bishop v. Wood (1976). However, where a state statute allows public servants to retain the positions in the absence of “misfeasance, malfeasance, or nonfeasance in office,” the person could have a property interest in continued employment. Cleveland Board of Education v. Loudermill (1985). The Supreme Court has recognized property interests protected by the due process clauses in the following instances:

  • A state statute allowing the government to aid in the collection of debts through wage garnishment without notice or a hearing violated due process rights of the person whose wages were garnished (Sniadach v. Family Finance Corp. of Bay View [1969])
  • Welfare recipients were entitled to notice and a hearing prior to the termination of public assistance payments (Goldberg v. Kelly [1970])
  • Suspension of a driver’s license by a state department of public safety required notice and a hearing (Bell v. Burson [1971])
  • A teacher who was employed by a junior college under a series of one-year contracts could prove entitlement to continued employment based on a provision of an employee handbook (Perry v. Sinderman [1972])