Massey
Con Law II
Fall 2010
I. DUE PROCESS
A. Introduction to Individual Rights and Procedural Due Process 425-443
3 Approaches
– Government benefits are privileges – use common law to define
o No constitutional right to be a policeman – McAuliffe
o No right to due process if gov’t threatens to fire you – Bailey
– Government benefits are entitlements
o Important statutory entitlements are property / essential to person’s livelihood
o Goldberg – A government benefit that is extremely important to its recipient is a form of property to which due pro attaches.
§ Elimination of the welfare benefits at issue would deprive the claimant of the very means to live
– Contracts and statutes – Property as defined by state law
o Sufficiency of the claim of entitlement to a protected interest must be decided by reference to state law. Bishop
o Roth – Hired for 1-year term, no tenure rights. Must have more than a unilateral expectation to the benefit. Must have a legitimate claim of entitlement to it
o Sindermann – De facto tenure system. Legitimate claim of entitlement to job tenure.
– When does a governmental benefit become a property right?
o Gov’ts have no obligation to deliver benefits – wholesale repeal of entitlements is constitutional
– High water mark – important statutory entitlements ought to be regarded as property interests to which procedural DP attaches
o Goldberg v. Kelly (1970) – any government benefit that was extremely important to its recipient was form of liberty or property to which due process attaches
§ property as socially contingent
§ welfare recipient entitled to evidentiary hearing before termination of benefits b/c benefits are matter of statutory entitlement and of utmost importance
§ VERY SUBJECTIVE – high water mark
o If a government chooses to provide a benefit, what must it do before taking it away from individuals?
§ Cleveland Board of Education v. Loudermill – James Loudermill had expectation of continued employment. He made a false statement on his employment application (wrote misdemeanor instead of felony)
· Court said that Constitution was not the source of property interests – created by state law
· logic of Loudermill: if government is going to give you more than a unilateral expectation of job this gives you a property right (bilateral expectation) can’t lose it without some sort of due process
· Rule: State law may grant a property right, but may not dictate terms of due process for deprivation of that right – this is for the Constitution
o OH statute created property interest b/c of said entitled to retain position during good behavior
· Rejects bitter with the sweet argument
o Dissent: bitter with the sweet; scope of the statutory right to which DP attaches is bounded by statutory procedures; ought to recognize totality of state’s definition of the property right
§ Arnett – government creates benefit, has procedure to remove; “take the bitter with the sweet”
o Under Castle Rock, discretionary entitlements are not property interests
§ benefit is not protected entitlement if government officials may grant or deny it in their discretion
§ here, woman obtained restraining order and police failed to act when husband abducted girls
§ individual enforcement of restraining order not likely property interest under DPC
– When does a governmental action invade a liberty interest?
o Liberty has a source in positive law and in natural law
o Wholesale legislation is not subject to procedural requirements – only as applied to individuals
o Change in legal status amounts to a loss of liberty
§ Wisconsin v. Constantineau (1971) – Law required posting pictures of “excessive drinkers,” to whom alcohol could not be sold
· Change in Constantineau’s legal status (no longer being able to buy liquor when everyone else can) amounted to a deprivation of liberty interest
§ Paul v. Davis (1976) – Suspected shoplifter’s picture was posted in merchants’ stores
· He wasn’t denied anything – injury to his reputation can be remedied by tort suit for
subsistence
o Compared to welfare benefits, SS disability benefits aren’t as important – those receiving general assistance don’t have anything else by definition
o If there is no other source of income, there is a requirement of pre-deprivation hearing
· Sliding scale from minimal to severe
o What is the risk of erroneous deprivation?
§ Under current procedures?
§ What is the value of additional procedures? How much would risk be reduced by additional procedures?
· This inquiry is aided by: Whether there is greater objectivity, less subjectivity; Level of expertise of those who are a part of the procedure; In Mathews, medical evidence was used in evaluating the case; Would a pre-deprivation hearing reduce the risk in this case?
· need to defer to the good faith judgments of Social Security administrators
o What is the government’s interest?
§ Including function and fiscal/administrative burdens that additional procedures would impose
· In Mathews, the interest was refraining from paying undeserving recipients, and reducing administrative costs associated with making that determination
· The result of providing full evidentiary hearings pre-deprivation will be that the limited pool of resources will be disproportionately drained by undeserving recipients (deserving ones will have to go through the hearing as well) – finite pool can feed either benefits or hearings
· But – the hearing is available anyway, just post- rather than pre-deprivation – so what’s the difference in cost?
o If determined not to be eligible, the recipient received benefits erroneously during the hearing period, and that money will be lost
