administrative law
kovacs
fall 2013
I. Procedural Due Process – Chapter 7
1. Rulemaking v. Adjudication
· Due Process functions: accuracy, fairness, transparency, dignity, accountability, gravity, post deprivation process (i.e. whether something is difficult to undo), history, promptness / expeditious government action, burden.
· Procedural Due Process (PDP) claims are pretty rare because the APA meets or exceeds the constitutional standards
o Fifth Amendment (federal government) – PDP
o Fourteenth Amendment (state government) – PDP
· Due Process Analysis:
1) Whether DP triggered?
o When the government seeks to deprive someone of life, liberty or property
§ Liberty interests come from court/natural law
§ Need a legitimate claim of entitlement (sometimes state/federal statute)
§ Statute must have objectively reasonable ground to expect a property interest
o Adoption of a rule does not required an individualized hearing (rulemaking)
2) When is the process required? (when would a hearing be required?)
o Mathews Test:
§ 1) Private Interest in Avoiding Loss
§ 2) Risk of erroneous deprivation of such interest through procedures used, and probable value of additional or other safeguards
· Cross-examining a witness lowers risk of error
§ 3) Government Interest in Avoiding a Hearing
· Not providing extra procedure is a government interest because of administrative capabilities and resources burden
§ e.g., welfare, reputation, etc. is the most important (Goldberg)
3) What kind of process is due? (intertwined with “when”)
o Minimum is usually notice and comment for rulemaking
o Minimum usually a hearing for an adjudication
2. Seminal Cases
Londoner v. Denver (Adjudication)
· Facts: Government gives property a value, government decides how much tax had to be assessed, you get a tax bill
· Question 1: Whether notice to the landowners was required before the ordinance was enacted.
o No, because the city council can basically pass any legislative ordinance it wants to pave a street.
· Question 2 (Main): Whether the assessment made without notice was made in violation of PDP.
o They were given notice and were told to respond in writing within 30 days
o Adjudication Rule: PDP requires an individualized oral hearing where they can present their arguments
· Stands for: DP requires an individualized hearing in adjudication but not in rulemaking or legislation. Notice and opportunity to be heard is required.
Bi-Metallic v. State Board of Equalization (Rulemaking)
· Facts: Property taxes were ordered to be increased
· Notice was given that the Board was raising taxes
· Rulemaking Rule: PDP necessary for this kind of action was simply notice of the existence of the bill, much like when a legislature introduces a bill, but no oral hearing
o Only resort is through the political process
o O’Connor added from Minnesota CC v. Knight: Court should not intrude on policymaking which would break federalism, as well as separation of powers issue
Londoner versus Bi-Metallic
· Adjudicative Facts (Londoner)
o Adjudication: concerns liability about what happened in the past with existing law, so there is retroactivity
§ Specificity: generally specific people
§ Exceptionally affected on individualized grounds
§ Oral Hearing Needed for DP
· Legislative Facts (Bi-Metallic)
o Legislation (rule): concerns a rule for going forward, so only prospectively
§ Generality: concerns general people or population
§ Notice & Comment Needed for DP
o Temporal Aspect: creates a rule or makes a ruling based on an existing rule
**Due Process is only triggered when adjudicative facts are at issue, not legislative facts**
the types of fact at issue are another way to distinguish between adjudication and rulemaking; adjudication involves specific people, whereas rulemaking involving groups or classes of people.
3. History of Property for Due Process Purposes
· Historically, common law defined privacy and property, which in turn defined the DP Clause
o Ex. Bailey v. Richardson
· After New Deal, this changed from more of a privilege to more of a right
· 1950’s – Changed and no distinction is made
Cafeteria Union Case (Mackelroy) (1950’s)
o Abandoned right – privileges distinction which produced more rights
§ 1) Nature of the government function involved
§ 2) Private interest affected by the government action
4. Main Cases for Due Process
Goldberg v. Kelly
· à Height of Procedural Due Process
· Facts: AFDC – government trying to throw the plaintiff off of the government aid – fair hearing wasn’t scheduled until after the benefits were terminated.
· Issue: can you terminate the government aid without a hearing?
o Their termination involves state action that adjudicates important rights (benefits are a right not a privi
ement to be protected under DP of 14th.
Mathews v. Eldridge
· Facts: SSID claim was ceased
· “What”: Final Balancing Test for Amount of Due Process – Three Factors of what DP Requires
o 1) Private interest at risk
o 2) Risk of erroneous deprivation of such interest through procedures used, and probable value of additional or other safeguards (factor added by this case)
o 3) Government’s interest, including function involved & administrative burdens, etc.
· Application: SSID is different from Goldberg since money is not based on financial need and need is not as desperate, so a pre-termination hearing is not required
o Additional Factor (#2): says there is little chance of inaccuracy in determinations for SSID
§ Very much of a stretch!
· What: need “something less than an evidentiary hearing”
Cleveland Board of Education v. Loudermill
· Facts: Security guard got a job but stated on application that he had never been convicted of a felony, but in fact he had been and was subsequently discharged.
· When: Balancing Test – Private v. Government Interest & Accuracy Issue (Mathews)
· Function: hearing allows for discretion of decision-maker
· But, where government’s decision is entirely discretionary, Due Process is not automatically triggered
· What Process Due: hearing must be informal and just simple safeguards because:
o 1) Plaintiff possessed a property right based on the state statute
o Arnette v. Kennedy – bitter w/ the sweet, but this court rejects that
· HOLDING à Substance & procedure are distinct – procedure does not define the property interest; leg can create property interest but it cant deprive interest unless court approves it. If property interest, then full hearing.
· Dissent: if state law creates the interest, then adhere to the interest – person could never have expected more than what the statute said to begin with
o Always unpredictable results and ad hoc determinations
