1. Setting the Stage for Administrative Law Due Process

2. Substantive Due Process
Substantive Due Process refers to the protection of rights, separate from procedural due process limitations.
Examples of conflict areas:
Federal - national security powers v. 4th Amendment protections
State - police powers v. privacy (abortion and vaccinations)

3. Even when there are constitutional limits, the court generally allows significant regulation
There may be a right to an abortion, but the state can regulate health and safety aspects of abortion clinics.
The court presumes that health and safety regulations are in good faith.
There may be a right to own a gun, but the state can regulate carrying the gun - probably.
There is a right to be from unreasonable searches, which means a warrant in criminal law, but we will see that the authority for administrative searches is much broader.

4. Procedural Due Process
Procedural due process refers to the procedures by which government may affect the rights of an individual in a specific situation.
Procedural due process applies to adjudications and other proceeding that affect individuals or a small group of persons based on the specific factual determinations.
There is no procedural due process right in legislation
What is your appeal for legislation?

5. Criminal Due Process Rights Came First
The modern procedural due process starts with federal law enforcement limits in the early 1900.
The Warren Court in the 1950s and 1960 used the 14th Amendment to apply procedural due process protections to the states.
The key administrative due process cases are later - Goldberg in 1970, and the key case, Matthews v. Eldridge, in 1976.
Plaintiffs in these cases sought criminal law level due process.

6. Basic Criminal Due Process Rights Review
Right against self-incrimination
Right to confront witnesses
Right to be free from unreasonable searches and seizures
Right to a speedy and public trial
Right to trial by jury in serious cases.
Right to counsel extended to all cases, not just serious cases – Argersinger v. Hamlin, 407 U.S. 25 (1972)

7. How Well Does Criminal Due Process Work?
Do public defenders have the same budget and resources as prosecutors?
What does this mean in an adversarial system?
What percentage of criminal defendants get their day in court?
We will see that the court in Matthews is the first to raise the effectiveness of the due process to a constitutional test.

8. Chapter 4 - Adjudications
Whatever disagreement there may be as to the scope of the phrase “due process of law,” there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard. —Oliver Wendell Holmes, Frank v. Mangum, 237 U.S. 309, 347 (1915)

9. Why Administrative Due Process is Not Liberal or Conservative
Conservatives
Want the little man (and the rich man) to be fairly treated by the government, i.e., to be able to resist regulation.
Liberals
Want the individual to get lots of due process.
Both think the government losing against individuals is good, unless it is an area they want to regulate.
Smoking v. bathhouses
Guns v. abortion clinics

10. Realities of Regulation
The cost of due process
Agencies can do effective regulation
Agencies can give extensive due process to regulated parties
Agencies can be cheap
Agencies can work quickly
PICK 2, at most

11. Compensation and Due Process
While not in our text, later in the course we will cover compensation claims as another limit on agency action.
They become an issue in this chapter as an alternative to a due process remedy:
The state compensates you for your injury rather than giving you due process to prevent the injury.

12. The Constitutional Basis for Compensation is Takings Jurisprudence
What is a traditional property "taking"?
Take it and keep it.
What due process is involved?
What about compensation?
How is compensation measured?
Why is traditional takings jurisprudence much older than individual rights jurisprudence?

13. Regulatory Takings
When a government regulation reduces the value of property.
Why are these a hot topic in land use?
What would be the consequences of forcing the state to pay for any diminished value caused by regulation?
Should the owner pay the state if regulation enhances property values?
Zoning?
We will see that regulatory takings are not an issue for New Property.

14. Accidental Injuries – Tort Claims Act
Assume the postman runs over your dog or the forest service accidentally burns down your home
Have you suffered a taking?
Are these due process deprivations?
If so, how could the government provide due process?
(We cover these in the tort claims act section.)
What if the government repeatedly “forgets” to give mental patients a hearing before committing them?
Is this different?

15. Due Process and Government Benefits
Key – Due process only applies to governmental action!
Until the Warren Court, government benefits, including jobs were considered a privilege, not a right.
You could be fired or denied the benefit without due process.
Bitter with the Sweet Doctrine

16. The Consequences of the Bitter with the Sweet Doctrine
In 1940 a city fires a policeman because the police chief heard a rumor that the policeman had accepted free coffee and doughnuts from a shop on his beat.
No due process
Unless limited by civil service or other legislation, all governmental job holders were subject to be being fired without recourse.
Government benefits were construed broadly - going to a state college
You could condition these with restrictions that would otherwise be impermissible.

17. The Social Context for the Administrative Due Process Cases
The 1960s and early 1970s was a time of social change in the United States.
The civil rights movement.
The anti-war (Vietnam) movement.
The environmental movement.
All of these were about the role of the government.
The civil rights and environmental movements were dependent on changing the legal system.

18. Goldberg v. Kelly, 397 U.S. 254 (1970)
What process is due for the termination of welfare benefits?
The last gasp of liberal united states supreme court due process jurisprudence.
Goldberg sets up Matthews v. Eldridge.

19. Learning Objectives
Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness
Learn how increasing due process rights can have unintended consequences in a program with limited resources

20. Statutory Entitlements
What makes a benefit an entitlement that triggers due process?

21. Matrix Regulation Test 1 Test 2 Claimant Status
Income less than $3000 for family of 2
Income less than $6000 for family of 4 x
Assets less than $2000
Head of household is disabled

22. The pre-1996 Welfare System
What was/is the general attitude toward people on welfare?
What was AFDC?
Aid for Families with Dependent Children.
What were believed to be the unintended consequences of the welfare system?
Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

23. Facts of the Case What state did this case arise in?
AFDC is a federal program: What was the role of the state?
What was the economic status of plaintiffs?
How does this complicate their effectively asserting their legal rights?
Why did this result in the right to appointed counsel for indigent criminal defendants?

24. What was the administrative process that plaintiffs were contesting?
No hearing until after the benefits were terminated.
Just a written process before termination.
What do you think is the relationship between the agency personnel and the plaintiffs?
What were the problems with the informal system of reevaluating beneficiaries' status?
What was the impact on plaintiffs of terminating benefits?
How does this further complicate post-deprivation hearing rights?

25. What did the Plaintiffs Want?
A hearing before benefits were terminated, rather than after the benefits were terminated.
The right to an oral hearing and the ability to confront witnesses.
The right to appointed counsel paid for by the state.

26. Why Does Plaintiff Want a Pre-termination Hearing?
Why couldn't plaintiff file a written response to the termination letter?
What could she do at a hearing that she could not do in writing?
Why wasn't a post-termination hearing enough?
Why didn't the state want to give everyone a pre-termination hearing?

27. Goldberg Rights - A pre-termination hearing with these requirements
1) timely and adequate notice
2) oral presentation of arguments
3) oral presentation of evidence
4) confronting adverse witnesses
5) cross-examination of adverse witnesses

28. Goldberg Rights - II
6) disclosure to the claimant of opposing evidence
7) the right to retain an attorney (no appointed counsel)
8) a determination on the record of the hearing
9) record of reasons and evidence relied on; and
10) an impartial decision maker

29. Administrative Costs of Goldberg
What does granting these hearings do to the cost (delay + personnel time) of removing someone from welfare?
What does it do to the balance of benefits costs to administration costs?
What does this do to the global cost of the benefits system?

30. Short-Term Impact of Goldberg
How does raising the administrative costs affect processing new claims for welfare?
What is the incentive for the welfare officers under the Goldberg ruling?
What expectation does it create for welfare recipients?
What long term problem did this contribute to?

31. The Subsequent History of Goldberg
Never overruled
Ultimately limited to its specific facts
Superseded by Matthews six years later
Unfortunately, many scholars did not notice this and still argue that all deprivations that affect individuals should have pre-deprivation process.

32. Fixing Welfare - The 1996 Act
Who pushed for welfare reform?
Who signed it?
What is the new name for AFDC?
TANF - Temporary assistance for Needy Families
What does the name change tell you about the change in philosophy?
What do you get and for how long?
Supplemental Nutrition Assistance Program
How does this affect future Goldberg actions?
Will there be facts in dispute?

33. Goldberg's Children
Goldberg created the notion of an entitlement, i.e., a continued right to a government benefit as long as you met the triggering criteria for the benefit.
The next cases explored when this applied to employment, outside of civil service protections and public employee union contracts, which are more expansive than the constitutional minimum.