Goldberg v. Kelly, 397 U.S. 254 (1970) The Last Gasp of Liberal United States Supreme Court Due Process Jurisprudence 1

2 Learning Objectives Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness Learn how increasing due process rights can have unintended consequences in a program with limited resources

Statutory Entitlements What makes a benefit an entitlement? 3

4 Matrix Regulation Test 1Test 2Claimant Status Income less than $3000 for family of 2 Income less than $6000 for family of 4 x Assets less than $2000 Head of household is disabled x

5 The pre-1996 Welfare System What was/is the general attitude toward people on welfare? What was AFDC? What were the unintended consequences of the welfare system?

6 Supreme Court Context Warren Court What was the jurisprudential shift on the United States Supreme Court in the 1950s and 1960s? What has been the trend of the court since the Warren Court? How does this compare with the court's history?

7 Facts of the Case What state did this case arise in? AFDC is a federal program: What was the role of the state? What was the economic status of plaintiffs? How does this complicate their effectively asserting their legal rights? Why did this result in the right to appointed counsel for indigent criminal defendants?

8 Pre-Goldberg: Post vs Pre-Deprivation Due Process What was the administrative process that plaintiffs were contesting? What do you think is the relationship between the agency personnel and the plaintiffs? What were the problems with the informal system of reevaluating beneficiaries status? What was the impact on plaintiffs of terminating benefits? How does this further complicate post-deprivation hearing rights?

9 Why Does Plaintiff Want a Pre-termination Hearing? Do you think there were real bias issues in the process being challenged? Why couldn't plaintiff file a written response to the termination letter? What could she do at a hearing that she could not do in writing? Why wasn't a post-termination hearing enough? Why didn't the state want to give everyone a pre-termination hearing?

10 Goldberg Rights - I 1) timely and adequate notice 2) oral presentation of arguments 3) oral presentation of evidence 4) confronting adverse witnesses 5) cross-examination of adverse witnesses

11 Goldberg Rights - II 6) disclosure to the claimant of opposing evidence 7) the right to retain an attorney (no appointed counsel) 8) a determination on the record of the hearing 9) record of reasons and evidence relied on; and 10) an impartial decision maker

12 Administrative Costs of Goldberg What does granting these hearings do to the cost (delay + personnel time) of removing someone from welfare? What does it do to the balance of benefits costs to administration costs? What does this do to the global cost of the benefits system?

13 Short-Term Impact of Goldberg How does raising the administrative costs affect processing new claims for welfare? What is the incentive for the welfare officers under the Goldberg ruling? What expectation does it create for welfare recipients? What long term problem did this contribute to?

14 The Subsequent History of Goldberg Never overruled Superseded by Matthews Ultimately limited to its specific facts Unfortunately, many public health scholars did not notice then and have argued that all deprivations that affect individuals should have pre-deprivation process.

15 Fixing Welfare - The 1996 Act Who pushed for welfare reform? Who signed it? What is the new name for AFDC? TANF - Temporary assistance for Needy Families What does the name change tell you about the change in philosophy? What do you get and for how long? How does this affect future Goldberg actions? Will there be facts in dispute?

16 Goldberg's Children Goldberg created the notion of an entitlement, i.e., a continued right to a government benefit as long as you met the triggering criteria for the benefit. The next cases explored when this applied to employment, outside of civil service protections and public employee union contracts, which are more expansive than the constitutional minimum.

17 Why Administrative Due Process is Not Liberal or Conservative Conservatives Want the little man (and the rich man) to be fairly treated by the government, i.e., to be able to resist regulation Liberals Want the individual to get lots of due process, and cannot exclude corporations. Both think the government losing against individuals is good in individual cases.