Chapter 4
Part II
1
Employment Hearings
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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
2
Key Question: What is the purpose of the
hearing?
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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 youclient a second chance.
3
Boards of Regents v Roth, 408 U.S. 564
(1972)
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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?
4
Perry v. Sinderman, 408 U.S. 593 (1972)
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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?
5
Ivor van Heerden case
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Ivor van Heerden case
6
New Property v. Old Property
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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?
7
Liberty Interests

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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 rather than property interest.
8
Melissa I
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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?
9
Melissa II

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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?
10
Must There Be Facts at Issue to Get a
Hearing?

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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 if the basic facts are not in issue, what
does Loudermill tell us about facts in mitigation
and explanation?
 Should this be a constitutional right?
11
Wisconsin v. Constantineau, 400 U.S. 433
(1971)

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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?
12
Paul v. Davis, 424 U.S. 693 (1976)
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Note that this is the same term as Matthews - are they related?
The sheriff gave out a list of "active shoplifters," including persons
who had been arrested but not convicted
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?
13
Perverts R Us WWW sites: Connecticut Dept. of
Public Safety v. Doe, 538 U.S. 1 (2003)
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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))
14
Public Registries for Sex Offenders
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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?
15
Codd v. Velger, 429 U.S. 624 (1977)

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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.
 Would the information in his file hurt his future employment?
 Why didn't the court say that the plaintiff could just request that
the file not be forwarded to a new employer?
This recognizes the importance of employment information
 This is dicta, since the case was decided on other grounds.
 It does create 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.
16
Siegert v. Gilley, 500 U.S. 226 (1991)

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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?
17
Melissa III
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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?
18
Homeland Security and the CIA
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One of the big fights over the Homeland Security Bill is
its limitation of employee hearing rights
 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?
19
Prisons
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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?
20
The LA Prison Blues
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Louisiana Peace Index
LA Prison Stats - Murder Rates
Look at the rate and the cost per prisoner
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?
21
Stopped here
22
State Prison Litigation:
42 USC 1983
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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
23
Prisoners as Litigants
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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?
24
Due Process Claims
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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
25
Good Time Credits and Parole to Reduce
Time Served
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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
26
Cases that Affect Time Served
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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?
27
Sandin v Conner, 515 U.S. 472 (1995)
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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.
28
Wilkinson v. Austin, 125 S.Ct. 2384 (2005)
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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?
29
What rights does a prisoner retain?
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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.
30
Trade-offs in Prison Regulations
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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?
31