Chapter 4 - Adjudications

1. Chapter 4 - Adjudications Part 2 - Employment and Liberty

2. Goldberg Framework • Pre-termination hearings based on the severity of the injury of a wrongful termination. • Basic APA due process requirements • Independent decisionmaker • Notice • Written record and reasons • Right to confront evidence • Oral hearing if needed for fairness

3. When do you get a hearing at all? • Goldberg applies after the determination that your client gets a hearing. It is about timing and procedure. • The legal purpose of a hearing is to resolve factual disputes. • Hearing have other social purposes, such giving aggrieved parties a sense of fairness. • If there is no factual dispute, then there is no legal basis for a hearing. • Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman)

4. Employment Hearings These are an important class of hearing and a good example of facts in issue question.

5. 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. • Statutory schemes are the subject of the Employment Law course. • State rights are defined by the state law, not the US constitution, and can be broader than the US constitutional rights • States cannot provide less than the US Constitutional minimum due process.

6. Key Question: What is the purpose of the hearing? • Getting your client a hearing does not mean that your client can keep the job. • It gives you a chance to require the agency to show on the record why it fired or disciplined your client. • If the agency has built the record, you are likely to lose.

7. Why Bother with the Hearing if the Client will Lose Anyway? • Many agencies, especially state and local government agencies, do not do a great job at building records. • Even if there is a record, the hearing process may point out other, improper reasons for firing. • A public hearing may bring political pressure on the agency to reconsider the action. • Your client may want his/her day “in court.” • You have an ethical duty to explain that it might be futile.

8. 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?

9. What is the Factual Question? • There were no allegations of bad behavior. • Just a contract non-renewal. • Why was the university policy on continued employment critical? • How does it create an expectation of continued employment? • Without an expectation of continued employment, are there any facts at issue?

10. Boards of Regents v Roth, 408 U.S. 564 (1972) • What were the terms of the contract? • One year, not expectation of rehire • He was not rehired at the end of the year • Even if there had been a tenure system, had he triggered it? • Was there a continued expectation of employment, and thus a factual issue for a hearing?

11. Roth and Stigma/Bad Reasons for Firing • Roth claimed, but did not get before the court, that he had been fired for an improper reason. • A governmental employee without expectation of continued employment can be non-renewed for no reason, but not for a bad reason. • The University does not renew contracts on black employees. • This is a key lawyering issue for situations in which there is no expectation of continued employment.

12. University Staff • Staff • No right of continued employment, but cannot be fired for bad reasons. • Pure state employees • Research Faculty/Artists in Residence, etc. • Year to year appointments, with absolute bar on expectation of continued employment.

13. Tenured faculty • Must be meet tenure standards or leave in 6 years. • Expectation of continued employment. • Good cause for firing. • Academic freedom has little meaning beyond pure first amendment rights for conduct unrelated to the job.

14. Ivor van Heerden case • Ivor van Heerden case • No expectation of continued employment, thus University wins. • Round II – LSU Settles on stigma + claims • Van Heerdan claims he was fired for bad reasons. • He documented extensive unprofessional comments by university personnel in emails about him. • University settled.

15. 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?

16. 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.

17. Mitigation • If the decisionmaker has disciplinary alternatives, those can create facts at issue. • Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542- 544 (1985) • “Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.”

18. 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?

19. 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 if the law school has discretion in the type of punishment for plagiarism?

20. 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 • What was his injury? • Did Paul concede that he was a public 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?

21. Stopped here

22. Paul v. Davis, 424 U.S. 693 (1976) • Note that this is the same term as Matthews – think about whether they are related when we read Matthews. • The sheriff gave out a list of "active shoplifters," including persons who had been arrested but not convicted • How did the court distinguish Constantineau? • What did he claim as an injury in this case? • Could he still shop? • Was there stigma +? • How might the Internet change the analysis?

23. Alternative Remedies • What did Rehnquist say was his remedy if the characterization was incorrect? • We will learn that suing state officials for torts is difficult. • What are the limits of such a remedy? • Is he a sympathetic plaintiff? • Is this realistic alternative?

24. Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) • The state is going to list all persons convicted of a list of sexually related crimes on a public registry. • What is the impact of this on the listed persons? • What if you are on the list because of public indecency – pissing in public during Mardi Gras? • Plaintiff wants a hearing on before he is listed. • What is the factual basis for being included? • Prior conviction • Are there facts in issue?

25. Why isn't this an additional punishment? • When did plaintiff get his due process? • Original trial • What if he plead out? • Did he agree to this later listing? • Why isn’t this punishment? • Why do we do the listing? • Remember Kansas v. Hendricks?

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 hostage for nearly two decades?

27. Terrorist Watch Lists • Where do these fit in our system? • Are they like sexual offender lists? • Are they like drunkard lists? • What is the injury? • What is the national security issue and how does it change the rights calculation? • This becomes a Matthews issue.

28. The Reference ProblemCodd v. Velger, 429 U.S. 624 (1977) • Plaintiff claimed that putting the information about suicide in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman. • Why didn't the court say that the plaintiff could just request that the file not be forwarded to a new employer? • The circuit court created a right to a hearing or the right to have the information excluded. • This is dicta, since the case was decided on other grounds by the United States Supreme Court: • “Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627 • How does this modify the lower court’s opinion?

29. Siegert v. Gilley, 500 U.S. 226 (1991) • Forced to resign • Fired from the new job based on the bad recommendation - unethical and incompetent • Why does stigma plus fail? • Was the recommendation letter false? • If this is not a due process/stigma plus case, what is it? • What is the action for injuring his reputation? • What is the defense? • What are the risks if employers are reticent to give bad recommendations, or any recommendations at all?

30. 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?

31. Melissa IV • Melissa is charged with plagiarism, expelled from law school without a hearing, and the plagiarism is entered on her transcript. • She sues, saying this injury to reputation rises to the level of violation of her liberty interests. • The law school say that the transcript is confidential, and no one will see it unless she releases it.

32. Homeland Security and the CIA • One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights • National 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?

33. 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?

34. State Prison Litigation:42 USC 1983 • Based on deprivations of civil rights. • Due process claims, such as Sandin • "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care. • 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 • Cases against Federal prisons are brought under Bivens or the FTCA.

35. 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?

36. 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

37. 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 led to an explosion of federal prisoners • Same in many states

38. 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 do these look like Goldberg benefits?

39. 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. • What do many countries think of solitary confinement?

40. 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?

41. 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.

42. 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? • Corruption of prison officials?