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Chapter 4 - Adjudications

Due Process

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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 Might be important again, depending on the

election

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Modern Substantive Due Process

Substantive Due Process is a limited concept in modern supreme court jurisprudence But a controversial one The Affordable Care Act raised hard questions

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

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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?

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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

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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?

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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? Should the owner pay the state if regulation enhances

property values? Zoning? Right of reclamation in LA?

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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?

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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

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Goldberg v. Kelly, 397 U.S. 254 (1970)

The Last Gasp of Liberal United States Supreme Court Due Process Jurisprudence

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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

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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?

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Supreme Court Context

Warren Court What was the jurisprudential shift on the United

States Supreme Court in the 1950s and 1960s? What has been the trend of the court since the

Warren Court? How does this compare with the court's

history?

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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?

Statutory Entitlements

What makes a benefit an entitlement?

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Matrix Regulation

Test 1 Test 2 Claimant Status

Income less than $3000 for family of 2

Income less than $6000 for family of 4

x

Assets less than $2000

Head of household is disabled

x

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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?

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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?

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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

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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

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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?

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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?

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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?

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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.

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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.

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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.