1. 1 Chapter 4 Part II

2. 2 Employment Hearings Only government employees have constitutional rights to a hearing and due process States and congress can create rights to employment due process for private employees State rights are defined by the state law, not the US constitution, and can be broader than the US rights States cannot provide less than the US Constitutional minimum due process

3. Key Question: What is the purpose of the hearing? Getting a hearing does not mean you keep the job Getting a hearing means that the agency has to show on the record why it fired or disciplined you. If the agency has built the record, you are likely going to get fired or disciplined. However, many agencies, especially state and local government agencies, do not do a great job at building records, so the agency will not be able to show in the record their justification for the action. This may get your client a second chance. 3

4. 4 Boards of Regents v Roth, 408 U.S. 564 (1972) What were the terms of the contract? Why did he claim he was fired? Is this before the court? What process did he want? Did the university claim he had done anything wrong? Could this have changed the result? Did he get the hearing?

5. 5 Perry v. Sinderman, 408 U.S. 593 (1972) Facts Taught for 10 years University policy was to not fire without cause after 7 years Fired without cause What process did he want? Why was the university policy on continued employment critical?

6. Ivor van Heerden case 6

7. 7 New Property v. Old Property How do these cases create the "new property" How are the rights different for new property versus old property? How is the process different if I take your medical license, versus taking your land? What if I abolish your job or your welfare entitlement through legislation? Through a regulation - a rule, not an adjudication. How strong is the notion of new property?

8. 8 Liberty Interests What is a liberty interest? What are examples? How is a liberty interest different from a property interest? In prison cases, at least, courts tend to talk about liberty interests when the plaintiff is about to lose If it is not going to be protected, the court calls it a liberty interest.

9. 9 Melissa I Melissa is charged with plagiarism, which can result in expulsion from the (state) law school What is the purpose of granting her a hearing? What issues should she raise? What should the school present to support its case as the moving party? What is the value of the record of the hearing? Should she get a hearing? What about cancelling her scholarship without a hearing?

10. Must There Be Facts at Issue to Get a Hearing? What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman) tell us? Why does it matter whether there are facts in dispute? Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542- 544 (1985) Even if the basic facts are not in issue, what does Loudermill tell us about facts in mitigation and explanation? Should this be a constitutional right? 10

11. 11 Melissa II Melissa admits she plagiarized, but claims extenuating circumstances. Thinking about the reasons for a hearing from Melissa I, how are these factors changed by her admission? How has the burden of proof shifted? Is there any factual dispute to resolve? What if the law school has discretion in the type of punishment for plagiarism?

12. 12 Wisconsin v. Constantineau, 400 U.S. 433 (1971) A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold Did Paul concede that he was a public drunkard? Does this put facts in issue? What were the provisions for challenging being on the list? What did the United States Supreme Court hold?

13. 13 Paul v. Davis, 424 U.S. 693 (1976) Note that this is the same term as Matthews – think about whether they are related when we read Matthews. The sheriff gave out a list of "active shoplifters," including persons who had been arrested but not convicted How did the court distinguish Constantineau? What did he claim as an injury in this case? Was there stigma +? How would the Internet change the analysis? What did Rehnquist say was his remedy if the characterization was incorrect? What are the limits of such a remedy? Is this realistic for the plaintiff?

14. 14 Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) State is going to list all persons convicted of a list of sexually related crimes on a public registry What does plaintiff want a hearing on before he is listed? Why is this a relevant factual inquiry? What did the court find? Why isn't this an additional punishment? (Hint - Kansas v. Hendricks – an adlaw decision) If you were writing the opinion, where would you argue that plaintiff got his due process? (Also see: Smith v. Doe, 123 S.Ct. 1140 (2003))Smith v. Doe, 123 S.Ct. 1140 (2003)

15. 15 Public Registries for Sex Offenders Why are these popular? What is the policy justification? How does this affect the offender's ability to get a job or have a place to live? How narrow are the grounds for being on the list? How does this contribute to the guy in CA who was on the list but was able to keep a kidnap victim hostage for nearly two decades?

16. 16 Codd v. Velger, 429 U.S. 624 (1977) Plaintiff claimed that putting the information about suicide in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman. Why didn't the court say that the plaintiff could just request that the file not be forwarded to a new employer? The lower court created a right to a hearing or the right to have the information excluded, but it could be the grounds for facts at issue if there is a dispute about what is put in the file. This is dicta, since the case was decided on other grounds by the United States Supreme Court: “Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627 How does this modify the lower court’s opinion?

17. 17 Siegert v. Gilley, 500 U.S. 226 (1991) Bad recommendations from government employer Unethical and incompetent Fired at new (government) job Not a constitutional violation Why not? What link between the firing and the reputational injury was the court looking for when it created the "stigma plus" category? Did the old employer fire him? What was plaintiff's remedy? How is this at issue in the recent military mass murder by a military psychiatrist case?

18. 18 Melissa III Melissa was charged with plagiarism but was not provided any due process protections. Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.” Have her due process rights been violated under Siegert? Is this like a recommendation letter? Is this fair? What is her remedy?

19. 19 Homeland Security and the CIA One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights Security agency personnel are subject to firing without stated cause and get no hearing. The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection Why do this? Is this a good idea?

20. 20 Prisons Are prisons part of the criminal law system or the administrative law system? Why have prison populations doubled and tripled relative to the population over the past 30 years? Learning to think like an economist: Who benefits from tough laws, esp. drug laws? Who benefits from prisons? What is the tradeoff for the increased prison budgets?

21. 21 The LA Prison Blues Louisiana Peace Index LA Prison Stats - Murder Rates – If NO was a Country LA Prison StatsMurder RatesIf NO was a Country Why might the murder rates be higher than the general crime rate? What do you suspect is the basis for such low per prisoner cost? How does the dysfunctional public defender system contribute to the incarnation rate? Many are old and no threat to the public, but they cannot be released Costs finally have the governor talking about this. What are the long term implications of this system?

22. 22 State Prison Litigation: 42 USC 1983 State prison cases are mostly filed under 42 USC 1983, alleging that the state deprived the prisoners of their civil rights. Due process claims, such as Sandin "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care. (Cases against Federal prisons are brought under Bivens ) Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy

23. 23 Prisoners as Litigants Successful litigation is mostly by NGOs - ACLU, prison rights organizations, AIDS organizations Individual prisoners Do prisoners have a lot to do with their time? Do most prisoners have sophisticated legal talents? Do prisoners like to give the prison grief? What is most prisoner litigation going to look like?

24. 24 Due Process Claims Due process claims require the plaintiff to show that he had a liberty interest in the proceeding. Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court. Courts generally defer to the prison on matters of discipline and security

25. 25 Good Time Credits and Parole to Reduce Time Served Are these constitutionally required? Why have them? The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners Same in many states

26. 26 Cases that Affect Time Served Why would procedures that affect release dates get the most legal protection? Return to prison for a parole violation ( Gagnon ) Should the prisoner get a hearing? Why - what might be contested? Decisions reducing good time credits or affecting parole ( Morrissey / Wolff ) How does these look like Goldberg benefits?

27. 27 Sandin v Conner, 515 U.S. 472 (1995) Prisoner got 30 days in solitary as punishment. Is this cruel and unusual? (remember, it has to be both) Is he entitled to a hearing? Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated. The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements. What do many countries think of solitary confinement?

28. 28 Wilkinson v. Austin, 125 S.Ct. 2384 (2005) The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements. What does it mean to be in a supermax prison? Why do we put inmates in them? Wonder if the supermax mattered at all Does a hearing before the prison officials really mean much?

29. 29 What rights does a prisoner retain? Some freedom to exercise religion Some limited right to communicate with the outside A little bit of free speech Some bodily integrity, at least in the area of medical care Freedom from beatings and the like through FTCA/Bivens, 42 USC 1983, and state laws.

30. 30 Trade-offs in Prison Regulations Assume you have been hired to develop a new set of prison regulations for Angola. What are the tradeoffs you must deal with? What happens if prisoners have lots of rights? What if prisoners have no rights? Do more detailed regulations increase or reduce prison discretion? Increase or reduce conflicts over rules?