Signing into Heaven: Zimeron v. Burch, Federal Rights, and State Remedies Thirty Years After Monroe v. Pape

In Zinermon v. Burch (1990) a bare majority of the Supreme Court rejected a broad ruling of the Parratt v. Taylor (1981) adequate state remedy procedural due process doctrine. In Parratt, the Court decided that whenever a procedural due process violation was random and unauthorized, the state may rectify the problem with a post-deprivation state tort remedy. As long as it did so, procedural due process was satisfied. This is in contradistinction to the general insight of procedural due process that any required hearing must occur before the deprivation occurs. While the Parratt contention that it is impossible to afford a pre-deprivation hearing under certain circumstances is clearly correct, improperly understood the exception in that case could swallow the more important rule. The appropriate constitutional understanding of the guarantee of fair procedure was at stake in Zinermon. Luckily, the majority of the Court recognized (albeit too cautiously) this for a man who believed that he was signing into Heaven when he voluntarily committed himself to a state mental hospital. This article argues that whenever the gist of the constitutional challenge is about prior notice and an opportunity to be heard or other aspects of fair government procedure, any default in affording them constitutes a completed procedural due process violation regardless of the availability of post-deprivation remedies.