Understanding Due Process: Substantive and Procedural Rights

1. Chapter 4 - Adjudications Due Process

2. 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

3. Modern Substantive Due Process • Substantive Due Process is a limited concept in modern supreme court jurisprudence • But a controversial one • Even when there are constitutional bars, 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

4. 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

5. 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 terrorist detainees

6. 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?

7. 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? • 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

8. 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?

9. 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

10. Goldberg

11. Stopped Here

12. 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, which are more expansive than the constitutional minimum.

13. 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 • Getting a hearing does not mean you get the job • States can create rights to employment due process for private employees

14. 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?

15. 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? • What did the court think? • Why was the university policy critical?

16. 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?

17. 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.

18. 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?

19. 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?

20. Stopped here

21. 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?

22. 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.

23. 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?

24. 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 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?

25. 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)

26. 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 for nearly two decades?

27. 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?

28. 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?

29. 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?

30. 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?

31. 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?

32. 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?