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Tues, 01/19/16

The Procedural Due Process Revolution


Goldberg v. Kelly (SCOTUS, 1970)
Issue: Whether a State that terminates public assistance payments to a particular recipient
without affording him the opportunity for an evidentiary hearing prior to termination denies the
recipient procedural due process in violation of the Due Process Clause of the Fourteenth
Amendment.
Holding: Yes, denies due process.
Discussion of Due Process
- (P4) The fundamental requisite of due process of law is the opportunity to be heard
o In the present context these principles require that a recipient have timely and
adequate notice detailing the reasons for a proposed termination
o And an effective opportunity to defend by confronting any adverse witnesses and
by presenting his own arguments and evidence orally
o The opportunity to be heard must be tailored to the capacities and circumstances
of those who are to be heard
- (P5) In almost every setting where important decisions turn on questions of fact, due
process requires an opportunity to confront and cross-examine adverse witnesses
Hearing must have following elements (FN4, (P6))
- Timely and adequate notice detailing reasons for proposed termination
- An effective opportunity (for the recipient) to defend by presenting his own arguments
and evidence orally confronting any adverse witnesses
o Costly litigation, fairly formal, adversarial process
- Retained counsel, if desired
- An impartial decision-maker
- A decision resting solely on the legal rules and evidence adduced at the hearing
- Statement of reasons for the decision and the evidence relied on
Essentially, Due Process involves the following procedure:
- Adequate notice
- Opportunity to be heard and present evidence
- Fair judge
Why does Due Process Clause apply to this case? Property
- Source of these decisions: state law, which creates property, not the Con
- Due Process only deals with procedure
- Con does not create new property; Con can only recognize property once it has been
created, and protects it
o Here, legislature created entitlement, court will enforce procedures
o But when it comes to liberty, Con can create new liberties

Civil rights, gay marriage, etc.

Sources of Con Law:


- Precedence
- British Common Law
- Tradition
o Problem: welfare as an institution did not really exist back in 1790s England
- The Constitution itself
o And we have power of judicial review we apply Con to the work of the govt
Considerations weighed:
- Private interest affected by the action at hand
- Risk of erroneous deprivation of such interest through procedures used
- Probable value, if any, of additional or substitute procedural safeguards
- Public interest (Govt interest)
o Administrative burdens that procedural requirement would entail
Goldberg represents peak of procedural due process powers (in terms of pre-termination
hearings), from here its mostly all downhill

Mathews v. Eldridge (SCOTUS, 1976)


Primary concern: Potential for increased accuracy from additional procedures has to outweigh
administrative costs
- Other concern: Pre-termination hearing implements value of the rule of law and
regularity in government
o Legislature makes prospective, general rules
The administrative bureaucracy cannot just administer however they want
Executive bureaucracy cannot just be indifferent to legislature
Pre-termination hearing can help ensure bureaucracy is
implementing rules as legislature intended
- Other concern: Dignity in representation
o When a rule is applied to you, you have the right to make sure that rule is being
applied to you in a dignified way
How do we do that? Give you the right to be heard.
Issue: Whether the Due Process Clause of the Fifth Amendment requires that prior to the
termination of Social Security disability benefit payments the recipient be afforded an
opportunity for an evidentiary hearing.
Procedural Posture: (P7)
Holding: No, lack of pre-termination hearing does not deny due process

Procedural due process: imposes constraints on govt decisions which deprive individuals of
liberty or property interests within meaning of Due Process Clause of Amendment V or XIV.
- Due process is flexible, heavily context-dependent.
- Fairness required (bare minimum requirement)
o Notice of reasons be given
Reasons based on evidence (written records)
o Opportunity to respond in writing be afforded
o Post-termination, there would be a fair hearing with potential for judicial
review, and potential for payment of benefits missed after the fact
- Factors considered (three-factor balancing test):
o Private interest affected by the action at hand
o Risk of erroneous deprivation of such interest through procedures used
Flip side: probable value, if any, of additional or substitute procedural
safeguards
o Public interest (Govt interest)
Administrative burdens that procedural requirement would entail
Pre-termination hearings are expensive
Inherent incentive to seek the hearing, as you will continue to
receive benefits during the litigation
Distinguishing from Goldberg:
- Private interest:
o Hardship for disabled worker is likely to be less than that of welfare recipient
- Risk of erroneous deprivation:
o Ways of determining disability (medical assessment) more reliable and scientific
than the witness statements in welfare need assessment.
- So, requiring such hearings in this case would be unnecessarily expensive
Defining Property:
Roth (SC, 1972): no constitutional right to a statement of reasons and a hearing for a professor
- Range of interests protected by procedural due process is not infinite
o Liberty and property are broad and majestic terms
- State did not deprive Roth of Property, did not make any charge that might seriously
damage Roth
o Good name, reputation, honor, integrity constitute liberty none here
o Re: property, to have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it.
He must, instead, have a legitimate claim of entitlement to it
- Property interests are not created by Con, but by existing rules or understands that stem
from independent sources such as state law (including contracts!)
o Here, Roth is missing that property interest, that entitlement to benefits, held by
the welfare recipients in Goldberg

Goldberg: welfare recipients were subject to objective criteria set out by


statute that determined whether they had property interest to benefits
Other examples of entitlement: revocation of drivers license
Dissent (Marshall): Every citizen who applies for a govt job is entitled to it unless the
govt can establish some reason for denying the employment
o What?
o Rehnquist also is not a fan of these cases, even the welfare ones
You should look at the promise and also the enforceability
Distinguishing from Sindermann, where there was a de facto understanding from the
course of dealing between the University and professors that

Cleveland Board v. Loudermill (1985)


- One it is determined that the Due Process Clause applies, the question remains what
process is due. (Morrissey)
o The Due Process Clause makes the court in charge of procedure
- Question:
o Is there a property interest?
Is there something to decide? Something the State has deprived of?
Agreements essential to economic survival
o Foreclosure agreement, pension rights, etc.
Not chattel, personal property, cash
o Then what is the procedure?
Notice
Right to respond
Then, if lost, potential for judicial review
Defining Liberty
Liberty interest not having physical freedom infringed upon
- Bill of Rights very detailed on processes of liberty interests
Sandin v. Conner (1995)
Hewitt: Court looked to prison regulations to find potential liberty interests
- Created two undesirable effects
o Disincentives for States to codify prison management procedures, as doing so
might create liberty interests
o Led fed courts into day-to-day management of prisons, waste of judicial resources
Return to Wolff and Meachum
- Wolff: statutory provision created liberty interest in shortened prison sentence which
resulted from good time credits
- Meachum: Due Process clause does not protect every change in conditions of
confinement

o Transfer and other changes, even if they have more burdensome conditions, as
long as they are within the normal limits or range of custody which conviction
has authorized State to impose then its all good
States may under certain circumstances create liberty interests protected by Due Process
o But these interests will generally be limited to freedom from restraints that impose
atypical or significant hardship on the inmate in relation to ordinary incidents of
prison life
Here, no dramatic departure from basic conditions of Conners
indeterminate sentence
Solitary confinement itself does not implicate constitutional liberty interest

So, what does liberty mean? Thats for the justices to decide, not legislature
- If statute says that transfer from medium to max security prison requires a hearing, then
courts will enforce that statute
o Just like Roth

01/22/2016
- Review
- Property
o Con does not create property rights, simply describes what procedures exist when
the govt tries to take that property away
What was new about Goldberg
Statutory promises also property, if person has a legitimate claim
to the entitlement
o That legitimacy comes from determinative standards (who
is entitled to disability benefits, welfare, etc.) that state has
provided for the benefit
o Loudermill: even if state creates a procedure for a particular right (entitlement),
the procedure and the right are separate
So in cases of lousy procedures, that still violates Due Process even if
State has their own statute
o SO, the Due Process remedy in these cases are give me a hearing! not give me
my job! or give me my welfare!
Hearing advantages: right to continue benefits until you get your hearing
Also, getting notice with a set of reasons is pretty cool, and gives
you something to argue about, challenge
- Liberty
o Prison cases, youre already in, they do something to make your living conditions
worse
Court says, well, if punishment extends time, denies parole, denies
something like good-behavior credit, then you get a hearing
But what about something like solitary confinement? Or transfer to
max security from intermediate?

o
o
o
o
o
-

o Prisoners contend that


o Courts started to tend toward agreement, but realized they
were poking their noses into day-to-day businesses of
prisons
Also, requiring hearings over these sort of statutory
discrepancies creates disincentives for putting
prison rules in writing
Liberty differs from property in that liberty is for courts to define
Courts only deciding if a particular decision by a prison is so far out of the
ordinary that it should require a new hearing
Hypos:
Juvenile Detention
Parental Rights
Matthews three-factor test:
Mentally Ill
Clear and convincing evidence

Marbury v. Madison
o Facts:
On his last day in office, President John Adams named forty-two justices
of the peace and sixteen new circuit court justices for the District of
Columbia under the Organic Act. The Organic Act was an attempt by the
Federalists to take control of the federal judiciary before Thomas Jefferson
took office.
The commissions were signed by President Adams and sealed by acting
Secretary of State John Marshall (who later became Chief Justice of the
Supreme Court and author of this opinion), but they were not delivered
before the expiration of Adamss term as president. Thomas Jefferson
refused to honor the commissions, claiming that they were invalid because
they had not been delivered by the end of Adamss term.
William Marbury (P) was an intended recipient of an appointment as
justice of the peace. Marbury applied directly to the Supreme Court of the
United States for a writ of mandamus to compel Jeffersons Secretary of
State, James Madison (D), to deliver the commissions. The Judiciary Act
of 1789 had granted the Supreme Court original jurisdiction to issue writs
of mandamus to any courts appointed, or persons holding office, under
the authority of the United States.
o Define judicial review.
Supreme Court has authority to review acts of Congress or the executive
branch and determine their constitutionality, and void those acts if
unconstitutional
o Identify the steps of Marshall's argument.
Does Marbury have a right to commission?
Yes, there is a determinative standard with appointments

o Marbury had reason to rely on the presidential nomination,


and so it became a property right
Similar to Goldberg
o What begins as discretion and choice turns into an
individual right and entitlement now the courts are
involved
Does law grant Marbury a remedy?
When the law creates a duty, and individual rights depend on the
performance of that duty, then the individual injured by the
nonperformance of that duty has a right to resort to the law for a
remedy
o Recalls Goldberg
Where there are standards to what the government
should do, then the law should enforce that right
But when Executive or Legislative branches make decisions that
do not infringe on individual rights, Court has no say
o Foreign policy, military matters, appointments, pardons,
vetoes, etc.
Court has nothing to say on these matters these
are political matters
Here, Court says that while the appointment of Marbury was a
political matter, once it was signed and sealed, the appointment
became a property right for Marbury that the Court could enforce
Does the Court have the authority to review acts of Congress?
Yes the judiciary get to say what the law is
o BUT, in this case there is not jurisdiction?
Marshall hid behind this, probably because he did
not want to start beef between branches so early in a
young countrys history
Can Congress expand the Courts jurisdiction beyond Article III?
Court has no jurisdiction over Marburys case
o Judiciary Act of 1789 tried, but Marshall found that it
clashed with Art. III
Does the Supreme Court have original jurisdiction to issue writs of
mandamus?
Writ of mandamus: order to deliver a document
o Injunction against an officer of the state to force them to
comply with a particular rule
Oh ho, link to Due Process cases, where a writ of
mandamus would force a hearing for welfare
recipient as required by statute
o Why does he order them as he does?
o Identify the reasons justifying judicial review.
o Identify a narrow, intermediate, broad holding re the scope of judicial review.

Weird thing is, judicial review is dicta!

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