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Procedure Outline

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Procedure Baselines for Procedural Due Process: What Interests Are Protected?
Goldberg v. Kelly In Goldberg, the Court held that due process requires an evidentiary hearing prior to termination of welfare benefits, because individuals receiving welfare have a property interest in continued receipt of benefits. In so holding, the Court rejected the rights-privileges distinction that had previously dominated the inquiry whether a deprivation required due process. See McAuliffe v. New Bedford (Mass.) (Oliver Wendell Holmes) (holding that the government did not have to provide due process before firing a police officer for his political activities because although "the petitioner may have a constitutional right to talk politics ... he has no constitutional right to be a policeman."). The Court held that although the hearing did not to take the form of a judicial or quasi-judicial trial, the recipient must have timely and adequate notice and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally, and that the recipient must be allowed to retain counsel. The case is interesting because it represents a shift in the baseline used to define property; rather than relying on the common law as the appropriate baseline, the Court treated the economic ordering of the welfare state as the appropriate baseline. The Court explicitly endorsed the view of Professor Charles Reich, who wrote in a classic article that "Society today is built around entitlements ... Many of the most important entitlements now flow from government ... Such sources of security ... are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity." DeShaney v. Winnebago County In DeShaney, the Court stated that the due process clauses "generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." The exceptions are cases when a person is in government custody or where the government itself created the danger; no special relationship exists simply because the State knows that an individual faces a special danger of abuse and specifically proclaims, by word and deed, its intention to protect the individual from danger. Rehnquist, J., noted a further exception: "The State may not
... selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause," but found that DeShaney had not argued that such selective enforcement was occurring. Brennan, J., dissented: "Oppression can result when a State undertakes a vital duty and the ignores it." "If the State cuts off private sources of aid and then refuses aid itself, it cannot wash its hand of the harm that results from its inaction." That was what occurred here: "A private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she ...
reported her suspicions of child abuse to DSS." Blackmun, J., also dissented: "Like the antebellum judges who denied relief to fugitive slaves, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented in this case is an open one. ... I would adopt a "sympathetic"

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