Articles Flashcards
SUBSTANTIVE DUE PROCESS
- PROTECTION FROM ARBITRARY GOVT DECISIONS, RULES, LAWS, ETC.
- PROTECT RIGHTS THAT THE “ESSENCE OF A SCHEME OF ORDERED LIBERTY”
SELECTION INCORPORATION - 14th
DOCTRINE OF US SUPREME COURT
-10 amendments limit states, cities, counties, and police administrators.
ENFORCEMENT OF CONSTITUTIONAL RIGHTS
ENFORCED BY CIVIL ACTIONS FILED IN COURT
REMEDY: DAMAGES AND INJUNCTION
KELLEY V JOHNSON
CAN MAKE POLICE AS LONG AS NOT ARBITRARY.
Cannon v. City of West Palm Beach
The injury to reputation itself is not a protected liberty interest. A transfer or a missed promotion is not enough to show Cannon was deprived a liberty interest.
Bishop v. Wood
What did it say about expectation of employment.
The US Supreme Court looks to State Law (State Supreme Court) to determine a “reasonable expectation of continued employment”.
Unconstitutional Policies
Policies which are:
- Void for Vagueness
- Violate overbreath Doctrine
Constitutional Doctrine / Vagueness Doctrine
Is rooted in due process principles and is basically directed at lack of sufficient clarity and precision in statute.
Void for Vagueness
Test: Would a person of ordinary intelligence have to guess at the meaning of a policy?
A person must have a reasonable opportunity to know what is allowed and what is prohibited.
Overbreath
A policy which covers conduct which can be restricted but also covers conduct which cannot be restricted.
Procedure for Enforcing Policy
- is the conduct protected by the constitution?
- Is yes, then agency must prove a “compelling interest or substantial govt interest. Kelley v Johnson
if NO, employee bust prove that rule in arbitrary and no legitimate reason for the rule.
Types of Policies
1-Critical
2-Need to know
3-Need to reference
Internal Liability
- Employment at Will
- Due Process and Employment
- Equal Protection of the Laws
Employee at Will
can be dismissed for any reason or no reason but not an illegal one.
Internal Liability
Court Exceptions:
-Public Policy Makes it illegal to fire someone who:
Refuses to violate the law
Refuses to lie under oath
Refuses to surrender Constitutional Rights
Statutory Exceptions to Employment at Will:
- State Personnel Act/Civil Service
- Discrimination on basis or race, sex, political affiliation, religion, etc
- Filing a claim; worker’s comp, discrimination, whistle blower.
When does the Constitution Protect your Job?
- Property Interest
- Liberty Interest
Property Interest
- Contract
- Civil Service
- State Law - State Personnel Act
- “Just Cause “ required to fire
- law or ordinance grants an employee a reasonable expectation of continued employment.
No Property Interest
Deputy Sheriff
Probationary Employee
Employee Handbook
Policy and Procedure Manual
What does NOT establish a property interest?
- Length of Service
- Prior practice of agency
- The reason for the dismissal
Liberty Interest
Good name and reputation
Everyone has a Liberty Interest
-Right to Name Clearing Hearing
Liberty Interest affected:
Employee claims statement FALSO Statement stigmatizing in nature Made at or near time of discharge Was made public by employee No meaningful opportunity for employee name clearing hearing.
Suspensions
No pre-suspension hearing needed
Must have post suspension hearing or resolution within reasonable time. 90 days
Pre-dismissal Conference
Preliminary Decision to Dismiss
Present employee with summary of evidence
Employee allowed to respond-No Lawyers
Final decision made after considering info from pre-dismissal conference
Procedure Interest Due Process
- Name clearing hearing after dismissal
- Less Formality
- Allow employee to put explanation in personnel file
City of Ontario v Quon
Warrantless Searches are per se unconstitutional.
Work related purpose and investigation or work related misconduct
-Justified at inception and
-scope is related to objectives and not excessively intrusive.
WHAT YOU CAN GET FROM LAWSUIT
- NOMINAL
- COMPENSATORY
- PUNITIVE
- INJUNCTION
HOW MANYS DAYS TO REPLY TO CIVIL COMPLAINT
- 30 DAYS STATE
- 20 DAYS FEDERAL
