1. 1 Chapter 4 - Adjudications Due Process

2. 2 Substantive Due Process Substantive Due Process refers to the limits on what government can regulate Federal - commerce clause, national security powers, foreign affairs, State - police powers v. privacy (abortion) Important in the early days of the court before the modern expansive reading of the commerce clause Might be important again, depending on the whims of the United States Supreme Court judges.

3. 3 Modern Substantive Due Process Substantive Due Process is a limited concept in modern supreme court jurisprudence But a controversial one The Affordable Care Act raised hard questions, but survived. Even when there are constitutional limits, the court generally allows significant regulation There may be a right to an abortion, but the state can regulate health and safety aspects of abortion clinics. There may be a right to own a gun, but the state can regulate carrying the gun - probably.

4. 4 Procedural Due Process Procedural due process refers to the procedures by which government may affect the rights of an individual in a specific situation Procedural due process arises through adjudications and other proceeding that affect individuals or a small group of persons based on the specific factual determinations There is no procedural due process right in legislation What is your appeal for legislation?

5. 5 History of Due Process The constitution mostly did not apply to the states The 14th amendment was eventually used to apply the constitution to the states Many of the criminal due process protections we take for granted stem from the Warren Court and cases decided in the 1950s and 1960s. Criminal due process was developed earlier than administrative due process The current cutting edge of due process is transforming criminal due process into administrative, as with terrorist detainees

6. 6 Takings Review What is a traditional property "taking"? What due process is involved? What about compensation? How is compensation measured? Why is traditional takings jurisprudence much older than individual rights jurisprudence?

7. 7 Regulatory Takings What is a regulatory taking? Why are these a hot topic in land use? What are the consequences of forcing the state to pay for any diminished value caused by regulation? Should the owner pay the state if regulation enhances property values? Zoning? Right of reclamation in LA?

8. 8 Accidental Deprivations Assume the postman runs over your dog or the forest service accidentally burns down your home Have you suffered a taking? Are these due process deprivations? If so, how could the government provide due process? (We cover these in the tort claims act section.) What if the government repeatedly “forgets” to give mental patients a hearing before committing them? Is this different?

9. 9 Rights v. Privileges - History In 1940 a city fires a policeman because the police chief heard a rumor that the policeman had accepted free coffee and doughnuts from a shop on his beat. Due process violation? Did not need to provide due process for not granting or for terminating a government benefit Government benefits were construed broadly - going to a state college You could condition these with restrictions that would otherwise be impermissible Bitter with the Sweet Doctrine

10. 10 Realities of Regulation The rule of agencies Agencies can do effective regulation Agencies can give extensive due process to regulated parties Agencies can be cheap Agencies can work quickly PICK 2, at most

11. 11 Goldberg v. Kelly, 397 U.S. 254 (1970) What process is due for the termination of welfare benefits? The last gasp of liberal united states supreme court due process jurisprudence. These slides are the basis for a mini-lecture on entitlement law to set up the discussion of Matthews v. Eldridge.

12. 12 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

13. Statutory Entitlements What makes a benefit an entitlement that triggers due process? 13

14. 14 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

15. 15 The pre-1996 Welfare System What was/is the general attitude toward people on welfare? What was AFDC? Aid for families with dependent children. What were the unintended consequences of the welfare system? Daniel P. Moynihan’s Benign Neglect Memo to President Nixon. Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

16. 16 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?

17. 17 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?

18. 18 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?

19. 19 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?

20. 20 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

21. 21 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

22. 22 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?

23. 23 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?

24. 24 The Subsequent History of Goldberg Never overruled Superseded by Matthews Ultimately limited to its specific facts Unfortunately, many scholars did not notice this and have argued that all deprivations that affect individuals should have pre-deprivation process.

25. 25 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? Supplemental Nutrition Assistance Program How does this affect future Goldberg actions? Will there be facts in dispute?

26. 26 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.

27. 27 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.

28. 28 Employment Hearings Only government employees have constitutional rights to a hearing and due process States and congress can create rights to employment due process for private employees State rights are defined by the state law, not the US constitution, and can be broader than the US rights States cannot provide less than the US Constitutional minimum due process

29. Key Question: What is the purpose of the hearing? Getting a hearing does not mean you keep the job Getting a hearing means that the agency has to show on the record why it fired or disciplined you. If the agency has built the record, you are likely going to get fired or disciplined. However, many agencies, especially state and local government agencies, do not do a great job at building records, so the agency will not be able to show in the record their justification for the action. This may get your client a second chance. 29

30. 30 Boards of Regents v Roth, 408 U.S. 564 (1972) What were the terms of the contract? Why did he claim he was fired? Is this before the court? What process did he want? Did the university claim he had done anything wrong? Could this have changed the result? Did he get the hearing?

31. 31 Perry v. Sinderman, 408 U.S. 593 (1972) Facts Taught for 10 years University policy was to not fire without cause after 7 years Fired without cause What process did he want? Why was the university policy on continued employment critical?

32. Ivor van Heerden case Round II – LSU Settles on stigma + claims Round II – LSU Settles on stigma + claims 32

33. 33 New Property v. Old Property How do these cases create the "new property" How are the rights different for new property versus old property? How is the process different if I take your medical license, versus taking your land? What if I abolish your job or your welfare entitlement through legislation? Through a regulation - a rule, not an adjudication. How strong is the notion of new property?

34. 34 Liberty Interests What is a liberty interest? What are examples? How is a liberty interest different from a property interest? In prison cases, at least, courts tend to talk about liberty interests when the plaintiff is about to lose If it is not going to be protected, the court calls it a liberty interest.

35. 35 Melissa I Melissa is charged with plagiarism, which can result in expulsion from the (state) law school What is the purpose of granting her a hearing? What issues should she raise? What should the school present to support its case as the moving party? What is the value of the record of the hearing? Should she get a hearing? What about cancelling her scholarship without a hearing?

36. Must There Be Facts at Issue to Get a Hearing? What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman) tell us? Why does it matter whether there are facts in dispute? Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542- 544 (1985) “Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” 36

37. 37 Melissa II Melissa admits she plagiarized, but claims extenuating circumstances. Thinking about the reasons for a hearing from Melissa I, how are these factors changed by her admission? How has the burden of proof shifted? Is there any factual dispute to resolve? What if the law school has discretion in the type of punishment for plagiarism?

38. 38 Wisconsin v. Constantineau, 400 U.S. 433 (1971) A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold Did Paul concede that he was a public drunkard? Does this put facts in issue? What were the provisions for challenging being on the list? What did the United States Supreme Court hold?

39. 39 Paul v. Davis, 424 U.S. 693 (1976) Note that this is the same term as Matthews – think about whether they are related when we read Matthews. The sheriff gave out a list of "active shoplifters," including persons who had been arrested but not convictedlist of "active shoplifters How did the court distinguish Constantineau? What did he claim as an injury in this case? Was there stigma +? How would the Internet change the analysis? What did Rehnquist say was his remedy if the characterization was incorrect? What are the limits of such a remedy? Is this realistic for the plaintiff?

40. 40 Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) State is going to list all persons convicted of a list of sexually related crimes on a public registry What does plaintiff want a hearing on before he is listed? Why is this a relevant factual inquiry? What did the court find? Why isn't this an additional punishment? (Hint - Kansas v. Hendricks – an adlaw decision) If you were writing the opinion, where would you argue that plaintiff got his due process? (Also see: Smith v. Doe, 123 S.Ct. 1140 (2003))Smith v. Doe, 123 S.Ct. 1140 (2003)

41. 41 Public Registries for Sex Offenders Why are these popular? What is the policy justification? How does this affect the offender's ability to get a job or have a place to live? How narrow are the grounds for being on the list? How does this contribute to the guy in CA who was on the list but was able to keep a kidnap victim hostage for nearly two decades?

42. 42 Codd v. Velger, 429 U.S. 624 (1977) Plaintiff claimed that putting the information about suicide in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman. Why didn't the court say that the plaintiff could just request that the file not be forwarded to a new employer? The lower court created a right to a hearing or the right to have the information excluded, but it could be the grounds for facts at issue if there is a dispute about what is put in the file. This is dicta, since the case was decided on other grounds by the United States Supreme Court: “Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627 How does this modify the lower court’s opinion?

43. 43 Siegert v. Gilley, 500 U.S. 226 (1991) Bad recommendations from government employer Unethical and incompetent Fired at new (government) job Not a constitutional violation Why not? What link between the firing and the reputational injury was the court looking for when it created the "stigma plus" category? Did the old employer fire him? What was plaintiff's remedy? How is this at issue in the recent military mass murder by a military psychiatrist case?

44. 44 Melissa III Melissa was charged with plagiarism but was not provided any due process protections. Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.” Have her due process rights been violated under Siegert ? Is this like a recommendation letter? Is this fair? What is her remedy?

45. 45 Homeland Security and the CIA One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights National security agency personnel are subject to firing without stated cause and get no hearing. The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection Why do this? Is this a good idea?