Transcript Chapter 4 - Adjudications Due Process Substantive Due Process   Substantive Due Process refers to the limits on what government can regulate  Federal -

Chapter 4 - Adjudications
Due Process
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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
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Modern Substantive Due Process

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Substantive Due Process is a limited concept in modern
supreme court jurisprudence
 But a controversial one
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
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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 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?
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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 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
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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?
 Do you really think we can sort this out for coastal
restoration?
Should the owner pay the state if regulation enhances
property values?
 Right of reclamation in LA
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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?
 (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?
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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 v. Kelly, 397 U.S. 254 (1970)

The Last Gasp of Liberal United States Supreme
Court Due Process Jurisprudence
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Learning Objectives
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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
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The pre-1996 Welfare System
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What was/is the general attitude toward people on
welfare?
What was AFDC?
What were the unintended consequences of the
welfare system?
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Supreme Court Context
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Warren Court
 What was the jurisprudential shift on the United
States Supreme Court in the 1950s and 1960s?
Who became Chief Justice after Earl Warren?
What has been the trend of the court since the
Warren Court?
 How does this compare with the court's
history?
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Facts of the Case
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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?
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Statutory Entitlements
What makes a benefit an entitlement?
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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
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Pre-Goldberg: Post vs Pre-Deprivation
Due Process
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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?
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Why Does Plaintiff Want a Pre-termination
Hearing?
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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?
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Goldberg Rights - I
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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
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Goldberg Rights - II
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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
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Administrative Costs of Goldberg
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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?
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Short-Term Impact of Goldberg
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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?
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Fixing Welfare - The 1996 Act
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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?
How does this affect future Goldberg actions?
 Will there be facts in dispute?
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The Subsequent History of Goldberg
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Never overruled
Superseded by Matthews
Ultimately limited to its specific facts
Unfortunately, many public health scholars did
not notice then and have argued that all
deprivations that affect individuals should have
pre-deprivation process.
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Why Administrative Due Process is Not
Liberal or Conservative
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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.
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Goldberg's Children
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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.
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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
Key Question: What is the purpose of the hearing?
 Getting a hearing does not mean you keep the job
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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?
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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?
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Ivor van Heerden case
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Ivor van Heerden case
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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?
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?
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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.
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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?
 When do mitigation facts count?
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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 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?
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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 does 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?
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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))
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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?
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Codd v. Velger, 429 U.S. 624 (1977)
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Because he was a probationary employee, he had no property
interest in continued employment (Codd, round one - suicidal
policeman), 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.
 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 is dicta, since the case was decided on other grounds.
 Is it good law?
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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?
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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 like a recommendation letter?
 Is this fair?
 What is her remedy?
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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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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?
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The LA Prison Blues
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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?
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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.
 (Federal prison cases 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
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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?
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Stopped here
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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
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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
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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?
51
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.
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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?
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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.
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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?
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How Can Prisoners Enforce their Rights?
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Should jailhouse lawyers get special (positive)
treatment in court?
How much latitude should outside lawyers have in
asserting rights for prisoners?
Should there be different rules for juvenile
prisons?
 Who decides about representation for kids if
the parents are not fit?
 What about medical decisions for them?
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