Chapter 4 - Adjudications
Due Process
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Substantive Due Process
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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)
Substantive Due Process is a very limited concept
in modern supreme court jurisprudence
 Even when there are bars, the court generally
allows significant regulation
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Procedural Due Process
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Procedural due process refers to the procedures
by which government may affect the rights of an
individuals in a specific situation
Procedural due process arises through
adjudications and other proceeding that affect a
small group of persons based on the specific
factual determinations
There is no procedural due process rights in
legislation
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History of Due Process
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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 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 cutting edge of due process is transforming criminal
due process into administrative, as with detainees
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Takings Review
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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?
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Regulatory Takings
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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?
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Accidental Deprivations
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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?
What if the government repeatedly forgets to give mental
patients a hearing before committing them?
 Is this different?
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Rights v. Privileges - History
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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
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Goldberg
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Employment Hearings
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Only government employees have constitutional
rights to a hearing and due process
 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
States can create rights to employment due
process for private employers
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Boards of Regents v Roth
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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?
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Perry v. Sinderman
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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?
What did the court think?
Why was the university policy critical?
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Are medical and legal licenses new
property?
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What due process rights would you expect if the
state were revoking your license to practice?
Would you expect the same rights if the state did
not let you take the bar exam?
What does this tell you about your conduct before
you are licensed?
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LA Law Note - Title 49, Chapter 13, §961.
Licenses
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C. No revocation, suspension, annulment, or withdrawal of any
license is lawful unless, prior to the institution of agency
proceedings, the agency gives notice by mail to the licensee of
facts or conduct which warrant the intended action, and the
licensee is given an opportunity to show compliance with all lawful
requirements for the retention of the license. If the agency finds
that public health, safety, or welfare imperatively requires
emergency action, and incorporates a finding to that effect in its
order, summary suspension of a license may be ordered pending
proceedings for revocation or other action. These proceedings
shall be promptly instituted and determined.
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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?
What if I take your medical license, versus taking
your land?
What if I abolish your job or your welfare
entitlement?
How strong is the notion of new property?
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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?
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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?
What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal
policeman) tell us?
 Why does it matter whether there are facts in dispute?
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Stopped Here
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Liberty Interests
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What is a liberty interest?
What are examples?
Is liberty a liberty or a property interest?
How is a liberty interest like a property interest?
Why is a liberty interest less well protected than a
property interest?
Whether something is a liberty interest or a property
interest is somewhat circular - if it is not going to be
protected, the court calls it a liberty interest rather than
property interest.
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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
 Did Paul concede that he was a 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?
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Paul v. Davis, 424 U.S. 693 (1976)
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The sheriff gave out a list of "active shoplifters,"
including persons who had not been convicted
How did the court distinguish Constantineau?
 How was the effect on the plaintiff different in this
case?
What did Rehnquist say was his remedy if the
characterization was incorrect?
 What are the limits of such a remedy?
21
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)
 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)
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Siegert v. Gilley, 500 U.S. 226 (1991)
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Defamatory job recommendations from government
employer
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?
What was plaintiff's remedy?
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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 fair?
 What is her remedy?
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Melissa IV
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In this case, the school expels her without due
process and puts an entry on her transcript that
she “engaged in plagiarism in Legal Writing
during her first year.”
Has Melissa been deprived of liberty by the
damage to her reputation?
Is a note on the transcript equal to publication?
 Why does this matter?
 Is this stigma plus?
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Codd v. Velger, 429 U.S. 624 (1977) ,
Revisited
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Because he was a probationary employee, he had no
property interest in continued employment (Codd, round
one), but he claimed that the inclusion of this allegation
in his personnel file damaged his reputation and made it
impossible for him to find other employment as a
policeman.
 What did the Appeals Court find about information
contained in a personal file?
 Why didn't the court say that the plaintiff could just
request that the file not be forwarded to a new
employer?
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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?
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Job Security in Public Workplaces
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What is the traditional trade-off between a public
job and a private job?
How can job security for government employees
hurt the general public?
What has been the trend for job security in private
employment?
What is the cost of reducing job security for
public employees?
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