Setting the Stage for Administrative Law Due Process

1. Setting the Stage for Administrative Law Due Process

2. Substantive Due Process • Substantive Due Process refers to the protection of rights, separate from procedural due process limitations. • Examples of conflict areas: • Federal - national security powers v. 4th Amendment protections • State - police powers v. privacy (abortion and vaccinations)

3. 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. • The court presumes that health and safety regulations are in good faith. • There may be a right to own a gun, but the state can regulate carrying the gun - probably. • There is a right to be from unreasonable searches, which means a warrant in criminal law, but we will see that the authority for administrative searches is much broader.

4. 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 applies to 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?

5. Criminal Due Process Rights Came First • The modern procedural due process starts with federal law enforcement limits in the early 1900. • The Warren Court in the 1950s and 1960 used the 14th Amendment to apply procedural due process protections to the states. • The key administrative due process cases are later - Goldberg in 1970, and the key case, Matthews v. Eldridge, in 1976. • Plaintiffs in these cases sought criminal law level due process.

6. Basic Criminal Due Process Rights Review • Right against self-incrimination • Right to confront witnesses • Right to be free from unreasonable searches and seizures • Right to a speedy and public trial • Right to trial by jury in serious cases. • Right to counsel extended to all cases, not just serious cases – Argersinger v. Hamlin, 407 U.S. 25 (1972)

7. How Well Does Criminal Due Process Work? • Do public defenders have the same budget and resources as prosecutors? • What does this mean in an adversarial system? • What percentage of criminal defendants get their day in court? • We will see that the court in Matthews is the first to raise the effectiveness of the due process to a constitutional test.

8. Chapter 4 - Adjudications Whatever disagreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. —Oliver Wendell Holmes, Frank v. Mangum, 237 U.S. 309, 347 (1915)

9. 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. • Both think the government losing against individuals is good, unless it is an area they want to regulate. • Smoking v. bathhouses • Guns v. abortion clinics

10. Realities of Regulation • The cost of due process • 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

11. Compensation and Due Process • While not in our text, later in the course we will cover compensation claims as another limit on agency action. • They become an issue in this chapter as an alternative to a due process remedy: • The state compensates you for your injury rather than giving you due process to prevent the injury.

12. The Constitutional Basis for Compensation is Takings Jurisprudence • What is a traditional property "taking"? • Take it and keep it. • What due process is involved? • What about compensation? • How is compensation measured? • Why is traditional takings jurisprudence much older than individual rights jurisprudence?

13. Regulatory Takings • When a government regulation reduces the value of property. • Why are these a hot topic in land use? • What would be 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? • We will see that regulatory takings are not an issue for New Property.

14. Accidental Injuries – Tort Claims Act • 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?

15. Due Process and Government Benefits • Key – Due process only applies to governmental action! • Until the Warren Court, government benefits, including jobs were considered a privilege, not a right. • You could be fired or denied the benefit without due process. • Bitter with the Sweet Doctrine

16. The Consequences of the Bitter with the Sweet Doctrine • 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. • No due process • Unless limited by civil service or other legislation, all governmental job holders were subject to be being fired without recourse. • Government benefits were construed broadly - going to a state college • You could condition these with restrictions that would otherwise be impermissible.

17. The Social Context for the Administrative Due Process Cases • The 1960s and early 1970s was a time of social change in the United States. • The civil rights movement. • The anti-war (Vietnam) movement. • The environmental movement. • All of these were about the role of the government. • The civil rights and environmental movements were dependent on changing the legal system.

18. 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. • Goldberg sets up Matthews v. Eldridge.

19. 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

20. Statutory Entitlements What makes a benefit an entitlement that triggers due process?

21. Matrix Regulation

22. 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 believed to be the unintended consequences of the welfare system? • Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

23. 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?

24. What was the administrative process that plaintiffs were contesting? • No hearing until after the benefits were terminated. • Just a written process before termination. • 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?

25. What did the Plaintiffs Want? • A hearing before benefits were terminated, rather than after the benefits were terminated. • The right to an oral hearing and the ability to confront witnesses. • The right to appointed counsel paid for by the state.

26. Why Does Plaintiff Want a Pre-termination Hearing? • 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?

27. Goldberg Rights - A pre-termination hearing with these requirements • 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

28. 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

29. 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?

30. 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?

31. The Subsequent History of Goldberg • Never overruled • Ultimately limited to its specific facts • Superseded by Matthews six years later • Unfortunately, many scholars did not notice this and still argue that all deprivations that affect individuals should have pre-deprivation process.

32. 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?

33. Stopped here – do recap

34. 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.