1. 1 Chapter 4 - Adjudications Part II

2. 2 The LA Prison Blues The Cost of Prisons LA Prison Stats - Murder Rates – If NO was a Country LA Prison StatsMurder RatesIf NO was a Country Why might the murder rates be higher than the general crime rate? What do you suspect is the basis for such low per prisoner cost? How does the dysfunctional public defender system contribute to the incarnation rate? Many are old and no threat to the public, but they cannot be released Costs finally have the governor talking about this. What are the long term implications of this system?

3. 3 Prisons Are prisons part of the criminal law system or the administrative law system? Why have prison populations doubled and tripled relative to the population over the past 30 years? Learning to think like an economist: Who benefits from tough laws, esp. drug laws? Who benefits from prisons? What is the tradeoff for the increased prison budgets?

4. 4 State Prison Litigation: 42 USC 1983 State prison cases are mostly filed under 42 USC 1983, alleging that the state deprived the prisoners of their civil rights. Due process claims, such as Sandin "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care. (Cases against Federal prisons are brought under Bivens ) Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy

5. 5 Prisoners as Litigants Successful litigation is mostly by NGOs - ACLU, prison rights organizations, AIDS organizations Individual prisoners Do prisoners have a lot to do with their time? Do most prisoners have sophisticated legal talents? Do prisoners like to give the prison grief? What is most prisoner litigation going to look like?

6. 6 Due Process Claims Due process claims require the plaintiff to show that he had a liberty interest in the proceeding. Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court. Courts generally defer to the prison on matters of discipline and security

7. 7 Good Time Credits and Parole to Reduce Time Served Are these constitutionally required? Why have them? The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners Same in many states

8. 8 Cases that Affect Time Served Why would procedures that affect release dates get the most legal protection? Return to prison for a parole violation ( Gagnon ) Should the prisoner get a hearing? Why - what might be contested? Decisions reducing good time credits or affecting parole ( Morrissey / Wolff ) How does these look like Goldberg benefits?

9. 9 Sandin v Conner, 515 U.S. 472 (1995) Prisoner got 30 days in solitary as punishment. Is this cruel and unusual? (remember, it has to be both) Is he entitled to a hearing? Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated. The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements. What do many countries think of solitary confinement?

10. 10 Wilkinson v. Austin, 125 S.Ct. 2384 (2005) The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements. What does it mean to be in a supermax prison? Why do we put inmates in them? Wonder if the supermax mattered at all Does a hearing before the prison officials really mean much?

11. 11 What rights does a prisoner retain? Some freedom to exercise religion Some limited right to communicate with the outside A little bit of free speech Some bodily integrity, at least in the area of medical care Freedom from beatings and the like through FTCA/ Bivens, 42 USC 1983, and state laws.

12. 12 Trade-offs in Prison Regulations Assume you have been hired to develop a new set of prison regulations for Angola. What are the tradeoffs you must deal with? What happens if prisoners have lots of rights? What if prisoners have no rights? Do more detailed regulations increase or reduce prison discretion? Increase or reduce conflicts over rules?

13. If you are Entitled to a Hearing: How Much Process is Due? 13

14. 14 Matthews v. Eldridge (1976) http://www.ssa.gov/disability/ http://biotech.law.lsu.edu/Courses/adlaw/201 4s/43421-DisabilityInsurance_print.pdf

15. 15 Social Security Disability Basic Procedure Get a form the Social Security office What is the illness, the work history, the doc? SSI orders records A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination Sends to regional office Regional office approves the claim, ask for more info, or denies the claim. Claimant can ask for reconsideration This is all done with records

16. 16 Social Security Disability Basic Procedure - Appeals Most problems arise because of poor documentation The agency has limited authority to reject the treating physician's evaluation. After denial, you can ask for a hearing before an ALJ The agency treats the ALJ's decision as final At this point you can appeal to the agency internal appeals process, then to the federal courts Positive decisions are retroactive - critical DP point Generates the money to pay the attorney as well

17. 17 Volume of Claims Are there a lot of Social Security Disability claims every year? Why is this important background for Matthews v. Eldridge ? Think about what this process looks like from the perspective of a disabled person tying to get benefits, or trying to avoid having benefits cancelled. Will they usually have benefit of counsel?

18. Background of the Case Was plaintiff already on SSI? Bad back and diabetes Did he develop a complicating condition? The 1972 questionnaire Did Eldridge complete the questionnaire? What did he indicate about his condition? Did the agency still think he was disabled at this point? 18

19. The Termination Process What did the agency decide about his condition as outlined in the tentative determination letter? Was Eldridge given a chance to respond before his benefits were terminated? Did he dispute their analysis of his condition? Did he provide any new evidence to support his position? What was the agency's response? 19

20. The Agency Process Did the SSA accept his rebuttal of their determination? Did he get an in-person hearing? Were his benefits terminated? What was his recourse? If it is later found that the benefits were improperly terminated, does the beneficiary get the back benefits? What does plaintiff claim Goldberg gives him a right to before his benefits are terminated? 20

21. 21 How are SSI Determinations Different from Welfare Determinations What sort of information was at issue in Goldberg ? What data is used for making disability determinations? Who would be the witnesses and how is their information collected? Is this different from the witnesses in Goldberg ? How is the value of the claimant's testimony different from that in Goldberg ? How does this change the equities of Goldberg ? Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg ?

22. The Accuracy of the Proceedings Do the parties and the amici agree on the reversal rate of the initial determination by the post- termination hearing? Is this an open or closed file review, i.e., does the claimant have one shot and if he is unsuccessful he has to start over with a new claim? How does this make it more difficult to determine if a reversal is due to initial error by the agency? 22

23. 23 The Mathews Factors First, the cost of an erroneous deprivation of the private interest at issue - (V) Second, the probability of reducing the chance of error through more extensive or different procedures - (P) Third, the government's interest in its procedures, i.e., the incremental cost of the additional or different procedures that might reduce errors - (C)

24. 24 The Mathews Factors as a Cost Benefit Analysis What is the relationship between C and (P x V) (C)ost of added process (P)robability of increased accuracy (V)alue of the benefit/cost of error. C < P x V What is the key to convincing the court that your client should get more process? How does this transform the notion of fairness? Is due process a good on its own in this analysis?

25. Apply these Factors to the Case How would you apply these factors to the Matthews case? Does plaintiff get his pre-termination hearing? What about detaining a tuberculosis carrier? A terrorist who might have information about a pending attack? 25

26. 26 Matthews as a the End of the Warren Court How is Matthews different from the ideal of due process in Goldberg? How does it differ from the notion that every one gets criminal due process rights, including counsel? Would we do better in criminal law if we were forced to recognize costs and benefits? Could the LA public defender system meet the Matthews test?

27. 27 How Far Does Matthews Go? Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards. http://biotech.law.lsu.edu/cases/nat-sec/hamdi.htm (at 65) http://biotech.law.lsu.edu/cases/nat-sec/hamdi.htm

28. 28 De minimis Test Some deprivations are too insignificant to trigger a right to a hearing Putting a cop on paid sick leave did not trigger due process Otherwise the courts will be in every employment action This is key issue in 1983 actions - how hard/often can the prison guard hit the prisoner?

29. 29 Alternative Remedies Due process is not the only remedy for many actions Contracts with the government are not property but are agreements governed by contract law. The Court of Claims system deals with these. Unger v. National Residents Matching Program Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action. Does you client really need a hearing, or do you have a contract action? Which is better?

30. Any Pre-Action Hearing Rights after Matthews? 30

31. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) Firing a teacher Applying the Matthews factors, how do you argue that an informal pre-termination hearing is required? How is this different from Matthews itself as regards to the ability to cure problems with a post-termination hearing? 31

32. 32 Gilbert v. Homar, 520 U.S. 924 (1997) Has there been a substitute for a hearing? Who did the guard work for? Why did this make his arrest for marijuana possession a particular problem? Did he get any due process prior to this suspension from the workplace? What was the importance of the decision by an "independent body" and what was the body? What are the limits of this opinion? Why does this being a temporary suspension matter?

33. 33 Goss v. Lopez, 419 U.S. 565 (1975) High school student suspended from school What due process did the court require? What was the Mathews analysis?

34. 34 Ingraham v. Wright, 430 U.S. 651 (1977) School paddling case What due process did the court require? What was the Mathews analysis? How does the analysis differ from Goss ? Why? Do we still paddle students? Why not? Is hauling them to jail more protective of their rights?

35. 35 Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978) Academic suspension case for a medical student What due process did the court require? What was the Mathews analysis? What would be the costs of having due process for every failing student? What would be the facts at issue? Would this analysis differ if this had been a disciplinary suspension?

36. 36 Law School Disciple and Due Process Why does Mathews result in different standards for academic and disciplinary suspensions? How do we tell whether it is an academic or disciplinary issue? What about plagiarism? Cheating? What is the role of special expertise and deference? Is this just judicial deference to agency expertise and policy making, with the school as agency?

37. 37 Bias in Administrative Hearings

38. 38 What does a Right to an Impartial Judge Mean? What are sources of bias? How is the analysis different for agencies than for Article III courts? What is separation of functions? How does it reduce potential bias? This argument lead to the central panel of ALJs in LA.

39. 39 The Problem of Proof of Bias We will see more about this in the chapter on judicial review The core problem is that you cannot judge bias by only looking at the record, but the courts are unwilling to allow discovery into the motives of the judges It would be like getting to depose an Article III judge as part of the appeal of a summary judgment.

40. 40 Exception to the Requirement of Separation of Functions for the Heads of Agencies 554(d) This subsection does not apply... (C) to the agency or a member or members of the body comprising the agency. The “agency” means the secretary in an agency with a single head. The “body comprising the agency” is the commissioners or board members of an agency headed by a committee.

41. 41 Withrow v. Larkin, 421 U.S. 35 (1975) State medical licensing board What were the functions? What did the doc request? Why did the court find that it was not necessary to separate them? The Supreme Court reiterated the fundamental importance of the need for an unbiased decision maker, but it found that the mere combination of investigatory, prosecutorial, and adjudicatory functions in the same entity did not necessarily make the entity biased in adjudicating. Why is the record so important in these cases? Why would an independent ALJ be a particular problem for these cases?

42. 42 Disqualifying an Administrative Law Decisionmaker for Bias What is the United States Supreme Court standard? “irrevocably closed mind” What does it take to show this? What happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964)? Why does mean that the head of the EPA needs to be circumspect in comments about BP? Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard? What is the Doctrine of Necessity?

43. 43 Kennecott Copper Corp. v. FTC, 467 F.2d 67 (10th Cir. 1972) Kennecott owned a small coal company, then bought a big one - Peabody FTC investigated this as an antitrust violation A commissioner gave an interview and explained that the agency saw Kennecott as removing itself as a competitor. Kennecott claimed this showed bias The court said no, but warned the agency to be more careful.

44. 44 Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966) Who was meddling in the FTC case? What did Senator Kefauver say? What the court was worried about: However, when such an investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer intervening in the agency's legislative function, but rather, in its judicial function. At this latter point, we become concerned with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences.

45. The Pillsbury Ruling What happens if the court disqualifies the commission because of the intimidation in the Senate hearing? The court’s solution: Although we conclude that the course of the questioning before the Senate subcommittee in June 1955 deprived the petitioner of the kind of hearing contemplated by the Supreme Court... we are convinced that the Commission is not permanently disqualified to decide this case. We are convinced that the passage of time, coupled with the changes in personnel on the Commission, sufficiently insulate the present members from any outward effect from what occurred in 1955. 45

46. What should Congress be able to do in Hearings and for Casework? Congressional case work – doing things for constituents such as checking on Social Security Benefits or trying to get bank regulators to lay off. What should be allowed and what would be forbidden under Pillsbury and what you know about due process? What if the president is meddling? How does this change the issues? Is he the decider? 46