Chapter 4 - Adjudications
Due Process
1
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.
2
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.
3
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?
4
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
5
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?
6
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?
7
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?
8
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
9
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
10
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.
11
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
12
Statutory Entitlements
What makes a benefit an entitlement
that triggers due process?
13
Matrix Regulation
Test 1
Test 2
Claimant Status
Income less than
$3000 for family
of 2
Assets less than
$2000
Income less than x
$6000 for family
of 4
Head of
x
household is
disabled
14
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.
15
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?
16
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?
17
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?
18
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?
19
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
20
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
21
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?
22
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?
23
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.
24
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?
25
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.
26
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.
27
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
28
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
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?
30
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?
31
Ivor van Heerden case


Ivor van Heerden case
Round II – LSU Settles on stigma + claims
32
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?
33
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.
34
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?
35
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, 542544 (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
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?
37
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?
38
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 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?
39
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))
40
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?
41
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?
42
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?
43
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?
44
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?
45