Deprivation of Life, Liberty or Property

1. Deprivation of Life, Liberty or Property When does something amount to one of these interests?

2. Board of Regents v. Roth -- the facts • Roth was employed by Wisconsin State University under a 1-year contract running from 9/1/68 to 6/30/69. • No tenure rights under the contract but anyone employed four successive years under 1-year contracts acquired such rights & could not be discharged except upon written charges and pursuant to a hearing • Anyone employed under 1-year contract also could not be terminated DURING the term w/out review of the dismissal. • Roth was notified according to state law that his contract would not be renewed after 6/30. No reasons were given. No hearing was held. All of this was consistent w/ provisions of state law on 1-year contracts • Roth sued claiming that the decision not to rehire him violated his 14th amendment due process rights • Failure to give notice/reasons of nonretention & opportunity for hearing • SCT said Roth had no liberty/property interest that triggered heightened procedural requirements under the Constitution.

3. Defining the protected interest in Roth, the relevance of the importance of the interest at stake: • Goldberg established a balancing test to determine what process is due • State’s interest vs P’s interest affected by deprivation • Should court weigh the IMPORTANCE of P’s interest to determine if it arises to a protected liberty/property interest? • Answer (p. 529): • Whether a protected liberty/property interest exists depends solely on the nature of the interest and not on its importance. • Importance of the interest is relevant only to the kinds of procedures that might be necessary once one gets to the question of the process due as in Goldberg

4. Roth & liberty interests • Roth gives us some idea of what “liberty” is: • Seems to define very broadly (p. 529) & includes freedom from bodily restraint, right to marry, freedom to contract, occupations of life, acquiring useful knowledge, etc. • 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) • Realistically - most of the liberties SCT lists are fundamental rights & those are most likely to trigger “liberty” finding • Roth’s interest in being rehired at WSU is NOT a liberty interest. Would Roth have a liberty interest if he was defamed to the public? • Maybe – generalized deprivations re “reputation” don’t amount to protected liberty interests. So harm to reputation often isn’t enough. • But easier to say amounts to liberty interest if it is specifically associated with job loss – i.e., Roth specifically defamed to all other potential employers thus making it clearly very hard to get another job

5. Roth and property interests • SCT defines a property interest as: • Something to which a person has a legitimate entitlement. Not simply an abstract need or desire. • What is an entitlement? • When 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” to something? • State law: statutes, regulations, common law (contract especially) • Custom/practice: is there an unwritten/informal “common law” used by the agency that rises to the level of an entitlement? • Perry v. Sindermann – similar contract/statutes as Roth. But other docs suggested “mutual understanding” that P had tenure if did certain things • Faculty Guide – while the college “had no tenure system” the “administration wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory”

6. More on liberty interests – state created? • Roth identified liberty interests and located them in the Constitution. • There is such a thing as “state created” liberty interests too. • Almost always comes up with institutionalized persons – usually prisoners, but to some extent others in custody of state (foster children, etc.) • Determine if state-created liberty interest exists: • Look to same things as w/ property interest: • Statutes, regulations, contracts, customs • Key is – whether there exists sufficiently mandatory language and identifiable criteria so that P can say there exists a “mutual understanding” that has an expectation in continued receipt of this practice • Example – I will receive visitation as long as my visitors don’t violate the following criteria . . . Denial of visitation (if it’s a liberty interest) must be preceded by some sort of hearing).

7. Must plaintiffs “take the bitter w/ the sweet?” • Roth involved a statute that created 1 year contracts and also said what process was due – no hearing or reasons need be given (p. 528) • Can the state argue that if it has created a property right it has the ability to be the final arbiter on the appropriate process to be given? • Note – SCT seems to buy this argument in Arnett v. Kennedy & Bishop v. Wood • Cleveland Bd. of Educ. v. Loudermill (p. 537): • School Board argued that Loudermill had received all the process due because state law defined the procedures due. SCT rejected that notion. • Once a court finds that statutes create a protected interest, the timing and nature of the required hearings are determined according to constitutional standards not state/federal law.

8. Indirect Beneficiaries • Obannon – Do residents of a nursing home operated by Town Court (TCNC) have a right to a hearing before the government revokes TCNC’s authority to provide them nursing care under Medicare benefits? • Gov’t certified TCNC as “skilled nursing facility” to receive state/fed funds to provide nursing care to the elderly. TCNC lost that certification & elderly patients were to be transferred to other facilities. Patients claimed statutory entitlement in continued residence in home of their choice and to avoid transfer unless hearing was held. • SCT: Direct beneficiaries of gov’t programs have hearing rights when deprived but indirect beneficiaries do not. • TCNC – direct beneficiary re “skilled nursing facility” status • Elderly patients – direct beneficiaries re actual receipt of Medicare benefits (but that is not what is at issue here) but indirect re TCNC’s status • They still have the ability to go to another skilled nursing facility & the deprivation imposed on them re lack of choice isn’t so significant that they can be thought of as direct beneficiaries here