Chapter 4 - Adjudications

1
Chapter 4 - Adjudications

• Part II

2
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.

3
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
• Key Question What is the purpose of the hearing?
• Getting a hearing does not mean you keep the job

4
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?

5
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?
• Ivor van Heerden case

6
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?

7
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 rather than property
  interest.

8
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?

9
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?
• When do mitigation facts count?

10
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 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?

11
Paul v. Davis, 424 U.S. 693 (1976)

• 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 not
  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)

• 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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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?

14
Stopped here
15
Codd v. Velger, 429 U.S. 624 (1977)

• 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?

16
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?

17
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?

18
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?

19
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?

20
Prisons

• 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?

21
The LA Prison Blues

• 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?

22
State Prison Litigation42 USC 1983

• 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

23
Prisoners as Litigants

• 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

• 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

• 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

• 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)

• 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)

• 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?

• 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

• 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
How Can Prisoners Enforce their Rights?

• 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?