civil procedure class #2 notes-1

8/13/2019 Civil Procedure Class #2 Notes-1

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Form a study groupfind ppl with whom you can discuss issues you dont understand

Due Process

These case are a good intro to understanding and distinguishing the substantive story from theprocedural process

Often, case that appear to be about different cases actually concern the same issueeven if the

substance of the case

Start thinking about due process in a larger context

What does this mean?

1) Due process doesnt apply to anyone EXCEPT the govt (according to constitution) Allowsus tothink about fairness in a procedural sense. When are these applicable to public actors?

Should/does due process apply to other actors? Not according to Constitution

2) Think about the constitution in term other laws and norms :a. Constitutionb. such as statutes, common law, and rulesfederal state and local) as it applies to

procedural protection.

c. There are also institutional rules that might be formalized, despite not being strictlylegal

d. What about societal norms? Think about the separation between law and moralityCB pg. 24:

The right to be heard: due process. That State shall not deprive any person of due process

What does this mean?*The due process guarantee applies explicitly under both 5

thand 14

thamendments, to both tates and

the feds

Historical context:

Re both GOLDBERG V. KELLY-

Part of a due process revolution

Progressive lawyers working on behalf of the poor and marginalized brought about a due process

development

What took off in the courts?

*once the govt extends benefits, those should be treated like property and protected from being taken

away on the same grounds as the protection afforded traditional [property.

*this opens the door to treat things like jobs as property as well

-ownership of property establishes a sphere of liberty to protect your own property

-these forms of resources on which poor depend (retirement benefits, etc)

-subsidies, tv channels, rail lines, etc should be treated as essentials

GOLDBERG V. KELLY


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1971, SCOTUS

Started in NY federal trial court

Went from 3 judge district court directly to SCOTUS

What happened?

*Kelly he had been receiving welfare benefits which were terminated b/c he was actually not eligible

*what if NY was right, and Kelly was not entitled?-b/c he had been receiving them, the possibility exists that he COULD HAVE BEEN. Therefore, its

not ok to take them away without due process. Even though we know the outcome, Kelly still

deserves process

-claimant always gets the benefit of the doubtmakes the whole process seem unfair and pre-

judged

*even if someone turns out t be ineligible, they are still entitled to the process.

What is the procedural issue?

*in this case, the man was not notified that his benefits will be discontinued. He argues that

a) he should have been notified

b) this expands to encompass: there isnt an adequate process to appeal the discontinuation of welfare

benefits

c) the due process deserves pre-determination hearing. Although Kelly got some notice, it was written,

which is sometimes insufficientno option for a personal appearance

elements of due process claim:

1) NO state2) Shall deprive a person3) Of life liberty or property4) Without due process of lawa. Needs notice

b. A hearing can be written in some contextsHow do we know the elements?a breakdown of the text of the provision

-EXCEPT the due process clause doesnt mention notice and hearing these come from case law

-diff ppl might break down diff waysthis is an analytic tool

RE Kelly:

His case qualifies as a state (NY) depriving a person (kelly) of (property). The majority does not dispute

these points. (which is notable for expanding property to include benefits). The dissenting judge

describes the Benefits as gratuities, which is distinct from entitlements, therefore he feels they do not

qualify as protected property

What is debated is:

1) what qualifies as proper noticea. NY process offered: a single 7-day before written notice, a chance to object in writing,

and an opportunity to work with a case worker. An opportunity for an in person hearing


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after the fact, but the case worker makes the argument and does the fact finding. BUT

the case worker has the discretion to contact the person being stripped of benefits.

b. Plaintiff objects to: not having a right to confront or halt the issue, to bring evidence,cross-examine, etc, before the termination of benefits

c. Pff wants this oral, in person, and prior to the deprivationHOW does court rule?

*according to constitution, a pre hearing is required for the pff (and others in similar situations)

*since welfare is necessary for those receiving it, if benefits are denied first, it will adversely affect

ability to seek redress from the welfare bureaucracy

*Pg. 34

What is NY govt interest?

a) Govt doesnt want to pay more than it has tob) This will be more costly in terms of resources for the govt, which must bear all the cost of an

appeal to termination of benefits.

c) Majority judge concedes: overriding govt interest in the case of welfare is protecting the well-being of its citizensthe govt must bring the rights of others into the reach of the poor.

Therefore, the govt must minimize suffering of its ppl

d) Pg. 34-35: court acknowledges that this will involve greater, unrecoverable, expenses (if dueprocess proves a claimant is ineligible, the govt will be out the cost of extending benefits during

the process)

e) EVEN SOdue process is required.

Roman part 2, pg 35

What, exactly, is the form of the hearing and notice that due process requires?1) Prior notice2) Hearing (in this case)oral.

a. Why must it be oral and in person?b. Welfare benefits are given to those who are usually less educated.opportunity to be

heard must be tailored to the capacity of those who need to be heard

c. Written submissions are less accessible, less satisfactoryd. Opportunity to cross-examine is primarily an in-person thing (esp for these ppl)

3) A right to counselfor the same reasons as above. A right to bring lawyer if you have onethisdoes not require the govt to provide one

4) Impartial decision maker, who must provide a statement and supporting evidence to explaintheir reasoning

a. Decision based on the recordno deciding a case based on irrelevant factorsi. If the decision is irrelevant to the case, how is claimant supposed to adequately

respond

b. Reasoning is required even in non-precedential casesc. Makes the process more candid, more transparent, les arbitrary

5) Right to appeal?


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What does due process NOT require (in this case):

1) Jury2) Paid lawyer (at govt expense)3) Translation4) Verbatim transcript or recording of proceedings5) Review w/in bureaucracy of whether decisions, reasons, and on the record limitation were

convincing

WHY are these not required?

What does the dissent say (in Goldberg v. Kelly)

1) the continuation of benefits during the process is an unfair expense to require from the govt2) this will harm the category of welfare recipients. Why?

a. It will be hard to get ppl off the rollsmaller pieces of the pie for everyoneb. The govt will hesitate more over extending rightsc. This is an overreach by the courtlegislating from the bench. This is a decision for

congress, and does not find a precedent in the legal system

d. Pg 38WHAT is the holding here?

*what does the case stand for?

*what is the authority of the case, what bindings does it place, and on whom?

What remains today?

*from a govt job, an at-will employee may be fired without due process

The purpose of due process

*to increase accuracy, but also to

* create a sense of justicerespect dignity, create a fair process, a participatory system

COUNTER DUE PROCESS REVOLUTION

Counters the rev. for due process in the 60s

MATTHEWS V. ELDRIDGE

*1976; SCOTUS (but a very different SCOTUS)

*does the procedural protection really increase accuracy? If not, why do it?

*disability case. The pff has healed, is working again, has controllable pain, so govt withdraws benefits

prior to the completion of the review

*pff was without benefits while waiting for an oral hearing

IF benefits were reinstated, would pff have standing?

*yes: he had a year without benefits


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State contests this all the way to SCOTUS

Why?

-To avoid allowing precedent

-cases will settle if: cost of payouts to payment+ cost of litigation > cost to settle

NO dispute over whether these are benefits

Same dispute issue: what qualifies as due process?

This is decided by:

*Private interestElridge wants his monies! Continued and uninterrupted!

*Govt interest cost of extending benefits to those who dont need it, saving money by not paying out

to lazy loafers; time and resources of added process. Are their better ways to spend this money?

*Risk of error/ value of additional safeguards

-fairness. Elridge may not, but other people do really need their benefits:

-Who bears the cost of extra process? The govt

-In order to protect due process rights, we must always keep in mind the policy to which it is

being applied. Be aware of the real people and the real effects that variations in process will have on

them

SOOOO

Balance the risk and costs against the benefits.

*how likely is error?

*how likely I process to decrease error?

Court says:

*because medical assessment is used/needed, there is less room for ambiguity.

*recipient is given full access to this info*disabled workers can get benefits from other avenues (as opposed to Goldberg v. Kelly, where there is

a genuine risk of extreme poverty in the case of suspension of benefits)these are NOT subsistence

benefits

*oral presentation is less needed, because all evidence is medical and written. It is a much more

objective analysis

Risk of false positives (inappropriate granting of benefits) and false negatives (vice versa)

*both situations must be looked at

*we tolerate fewer false positives than negatives:

-cost is higher to society with positives

-parental rights, death penalty, incarceration, etc: each capable of going very wrong, and with

potentially very high costs

So should there be one single process?

NO

Different cases are actually different. Stakes vary, as do the parties involved


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HAMDI V. RUMSFELD

*2004, SCOTUS

*right to habeas corpusthe right to challenge imprisonment

*understood as the root of all other right. If you cant challenge being locked up, what good are all other

rights? People could be locked up for anything, nothing, whatever reason the govt wants

Lead opinion by OConnor:

*4 justices form a plurality, not a majority

*issue: does hamdi have a right to question his classification as an enemy combatant

-district court says he does

-appeals court disagrees, because he was found in a theater of war

Govt says appropriate process is:

*none - hes an enemy combatant

Pff interest: personal liberty

Govt interest: national security

What does SCOTUS decide?

*they reject govt position that no process is due

*they call for a neutral decision maker

*constitution recognizes that war is a special circumstance, and war-makers can choose how to fight it.

*BUT they cant go this far

So the court grants HAMDI

*no right to pre-deprivation hearingfor reasons of natl sec-no right to not be snatched up on battlefield

-but there is a right post-deprivation

*post-deprivation, accused has a right to not be held indefinitely

-where is this line drawn

-right to rebut must occur a meaningful time after the person is detained

-does not specify how long this is

*due process DEMANDS a right to review and challenge detainment

*bones for the govt:

1) hearsay qualifies as reliable evidence;

2) burden of proof falls on the detained, not on the govt(but the detainee has a right to

rebuttal)

civil procedure class #2 notes-1

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