Procedural Requirements w/ Adjudications – We Will Start With Procedural Due Process

1. Procedural Requirements w/ Adjudications – We Will Start With Procedural Due Process • 5th Amendment: No person shall be deprived of life, liberty & property without due process of law. • 14th Amendment: No State shall deprive any person of life, liberty or property without due process of law. • When do the due process clauses apply to agency actions? • Bi-Metallic/Londoner: • Quasi-legislative actions do not implicate the due process clauses. BUT quasi-adjudicative actions do implicate the due process clauses and require heightened procedural protections. • What is an “adjudication” for due process purposes? • Involve a “relatively small number of persons” who are “exceptionally affected, in each case, upon individual grounds.”

2. Quasi-judicial agency actions violate the due process clause only if they involve the following: • Deprivation • By the Government • Of a Person’s • Life, Liberty or Property – what are these things? • Without Due Process of Law – what does this require?

3. Goldberg v. Kelly – foundational due process case • Facts:Ps received AFDC benefits. State/city of New York changed law so that P’s benefits were terminated or about to be terminated. Ps claimed the new law violated due process. • Is this an adjudication in the constitutional sense? • Yes - although involves statutory change in eligibility, decisions to terminate were based on new criteria & procedures that were individualized & people were contesting termination under those procedures • Is it a deprivation by the government of a personal interest? • Yes – pretty obviously • Are AFDC benefits “life, liberty or property?” • Why are AFDC benefits “property” in any meaningful sense? How does SCT reason to this result, or does it?

4. Process given to the Goldberg plaintiffs re termination of benefits: • Discussion of eligibility for benefits with caseworker • Notice of termination – w/ reasons at least 7 days prior to termination • Appeal to a superior agency officer via written statement • Written letter confirming the termination of benefits – benefits terminated • POST-termination fairness hearing (formalish hearing in nature) Why was this “process” inadequate under the 14th Amdt according to Ps and SCT?

5. The process required in Goldberg to satisfy the 14th amendment • Two threshold requirements for a hearing to satisfy due process: • Timely/adequate notice of termination with reasons 7 days is not per se inadequate but SCT notes it could be insufficient in particular situations • Effective opportunity to participate in the hearing prior to termination • Hearing need not be “quasi-judicial” but it must be held in a “meaningful manner” • Hearing must be “tailored to the capacities and circumstances of those who are to be heard” • What must the agency do differently regarding the 2nd requirement to satisfy SCT – i.e., what process must agency provide? • Why so much process here?

6. Interest balancing in procedural due process cases • Does the agency/government have no countervailing interest in maintaining the current form of hearings here? • Why isn’t that interest enough? Note the beginnings of a balancing framework to determine what kind of process is due (i.e. what procedures are required) when gov’t deprives a person of an property/liberty interest SCT balances the gov’t interest in its current procedures v. individual interest in increased procedures • But how easy is it to apply this balancing test – how do we know when individual or gov’t interest is weightier?

7. Board of Regents v. Roth – defining protected interests • Roth employed by WSU under a 1-year contract (9/1/68 to 6/30/69). • No tenure rights under the contract. Anyone employed four successive years under 1-year contracts acquired such rights & couldn’t be discharged except upon written charges pursuant to a hearing • Anyone employed under 1-year contract couldn’t be terminated during the term w/out review of the dismissal • Roth was notified that his contract would not be renewed. No reasons given; no hearing held. All of this was consistent w/ state law. • Roth sued claiming that decision not to rehire him violated his due process rights • Failure to give notice/reasons of non-retention & opportunity for hearing • SCT said Roth had no liberty/property interest that would trigger heightened procedural requirements under the Constitution.

8. Defining protected interests, the importance of the interest at stake: • Goldberg used a balancing test to determine what process is due – (i.e., what procedures to use) Balanced state’s interest in minimal process vs P’s interest affected by deprivation to determine procedural protections required • Should courts also weigh the importance of P’s interest to determine if it arises to a protected liberty/property interest?

9. Roth & liberty interests • Roth gives us some idea of what “liberty” is: • Defines broadly (p. 596) • Source = US Constitution: fundamental liberty interests – freedom from bodily restraint, right to marry, right to bring up children & garden variety – right to contract, occupations of life • What is the one thing we know that isn’t a liberty interest in Roth? • Would Roth have a liberty interest if he had been defamed by the university? Is there such a thing as liberty interest in one’s reputation?

10. Roth& property interests • A propertyinterest is something to which a “person has a legitimate entitlement” – something beyond an abstract need or desire. • What is an entitlement? • State/P have a “mutual understanding” that P has a legitimate expectation of continued receipt based on objectively identified criteria. • Where do we look to determine when an individual has a “legitimate claim of entitlement”? • Why did Roth have no claim to be rehired? • Why did Perry v. Sindermann (p. 599) come out differently given that it involved a similar situation?

11. When claiming a “protected interest” must plaintiffs “take the bitter with the sweet?” • Roth involved a statute that (1) created 1 year contracts and (2) stating the process due, i.e., no hearing need be held or reasons given • If the state has created a property right can it argue the court should define the property interest as including only certain limited procedural protections? • Arnett v. Kennedy & Bishop v. Wood (pp. 601-04) initially say “yes” • Cleveland Bd. of Educ. v. Loudermill (p. 605): • School Board argued that Loudermill’s protected job interest included only the right to be dismissed for cause subject to the procedural protections provided by statute. SCT rejected that notion. • Once a court finds that statutes create a protected property interest (i.e., right to be dismissed only for cause), the timing and nature of the required hearings are determined according to constitutional standards not state/federal law.