Admin Outline: Professor Kightlinger Fall 2012
1. Due Process – Is process due, and if so, how much?
a. Quick facts, at minimum:
i. Get opportunity for a hearing before deprivation
ii. As well as notice and opportunity to respond.
b. Is process due – must have a liberty or property deprivation
i. Property – (Roth) legitimate claim of entitlement
1. Ex: federal/state law to entitlement – Goldberg welfare benefits; Goss school education, Mathews social security benefits.
a. Contractual relationship against gov – Roth and Perry professors
b. C/L claim against the gov, etc.
i. Doesn’t have to be federal/state law.
ii. Liberty – lots of definitions:
1. Roth and Paul – Stigma + change in legal status, that gov has given you (ex: fired and stigmatized; defamation then fired)
a. Paul – stigma of being identified as known thief or active shoplifter is not enough. Need a change in legal status.
2. Paul- Legit Claim
a. Ex: gov gives you a right to buy alcohol, a driver’s license, etc. The gov cannot take it away w/o a hearing in advance.
b. Gives you liberty interest, than tries to take it.
3. Meyer broad language; liberty idea is really old from ol English days. Rhetorical background argument.
4. Ingraham – free from corporal punishment, most basic form.
iii. Exam Advice:
1. W/ liberty interest, don’t ignore property interest. Explain why there is no property interest. Explain thyself.
2. W/ liberty question, talk about all of them even if it’s straightforward. Explain your knowledge, nothing conclusory.
a. Either way, just check off every interest.
b. Assume there’s a liberty/property interest, get to Mathews.
c. Never stop your analysis!!!
c. Mathews Inquiry: To determine how much process is due, a court must weigh:
i. Private Interest – what is the government taking from you?
1. Discuss weight on Goss – Goldberg spectrum.
ii. Procedural Safeguards – are the safeguards sufficient? Would more process help? Good analysis of Mathews on big outline, pg. 8.
iii. Government Interest – includes function involved, amount of cash burned, administrative burden of more process, etc.
1. Discuss a weight to each factor, with a huge spectrum from Goss (minimal interest of school suspension and the school wants to end the disruption; informal given and take) to Goldberg (max interest à get food on the table; 6th amendment). Huge range of how much process.
a. Other examples:
1. If the statutory language is ambiguous w/ respect to formality and doesn’t include “triggering language,” there is NO PRESUMPTION in favor of formality.
2. Case by Case – Agency generally has discretion to use or not use procedures, then court determines if it is reasonable.
iii. Good review of hooking language CB 139, FN 13.
iv. Exam tip: Look at the fact pattern. If it says hearing on the record, it’s going to be formal adjudication.
2. Once it’s formal under §554, there are formal adjudication requirements that must be met:
a. Impartial and unbiased presiding officer
b. Notice and Opportunity to participate in hearing
c. Right of parties to appear w/ counsel
d. Right to present oral and written evidence
e. Right to conduct a cross examination
f. Right to submit proposed findings, conclusions & exceptions
g. Compilation of an exclusive record on which agency must base its decision; i.e decision on the record.
h. Limits on ex parte communication.