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Chapter 4 - Adjudications

Chapter 4 - Adjudications. Due Process. 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)

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Chapter 4 - Adjudications

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  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 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 • There may be a right to own a gun, but the state can regulate carrying the gun - probably

  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 arises through 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. 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 criminal 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 current 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? • (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?

  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 v. Kelly, 397 U.S. 254 (1970) • The Last Gasp of Liberal United States Supreme Court Due Process Jurisprudence

  11. 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

  12. The pre-1996 Welfare System • What was/is the general attitude toward people on welfare? • What was AFDC? • What were the unintended consequences of the welfare system?

  13. Supreme Court Context • Warren Court • What was the jurisprudential shift on the United States Supreme Court in the 1950s and 1960s? • Who became Chief Justice after Earl Warren? • What has been the trend of the court since the Warren Court? • How does this compare with the court's history?

  14. 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?

  15. Statutory Entitlements What makes a benefit an entitlement?

  16. Matrix Regulation

  17. Pre-Goldberg: Post vs Pre-Deprivation Due Process • What was the administrative process that plaintiffs were contesting? • 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?

  18. Why Does Plaintiff Want a Pre-termination Hearing? • Do you think there were real bias issues in the process being challenged? • 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?

  19. Goldberg Rights - I • 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

  20. 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

  21. 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?

  22. 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?

  23. 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? • How does this affect future Goldberg actions? • Will there be facts in dispute?

  24. The Subsequent History of Goldberg • Never overruled • Superseded by Matthews • Ultimately limited to its specific facts • Unfortunately, many public health scholars did not notice then and have argued that all deprivations that affect individuals should have pre-deprivation process.

  25. 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, and cannot exclude corporations. • Both think the government losing against individuals is good in individual cases.

  26. 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.

  27. 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

  28. 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?

  29. 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?

  30. Ivor van Heerden case • Ivor van Heerden case

  31. 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?

  32. 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.

  33. 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?

  34. 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?

  35. 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 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?

  36. 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 been 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?

  37. 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 – an adlaw decision) • 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))

  38. 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?

  39. 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? • This is dicta, since the case was decided on other grounds. • Is it good law?

  40. 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?

  41. 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?

  42. 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?

  43. 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?

  44. 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?

  45. 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?

  46. State Prison Litigation:42 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

  47. 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?

  48. Stopped here

  49. 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

  50. 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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