Chapter 4 - Adjudications

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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)
• 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

• 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

• 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

• 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

• 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

• 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

• 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

• 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

• 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

• 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?

• 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

• 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

• 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

• 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

• 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

• 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)

• 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)

• 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?

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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)
• 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)

• 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

• 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

• 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

• 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

• 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

• 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?