stating that “the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. ‘Property’ cannot be defined by the procedures provided for its deprivation any more than can life or liberty.”
How later courts described this case
- stating that “the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. ‘Property’ cannot be defined by the procedures provided for its deprivation any more than can life or liberty.”
- holding that an Ohio statute that entitled civil service employees to retain their positions unless there was cause for dismissal and set forth certain disciplinary procedures including an opportunity to respond “plainly creates” a property interest, and thus the plaintiff's allegation that he was deprived of a statutorily required chance to respond adequately stated a Fourteenth Amendment due process claim
- holding that a public employee threatened with termination is entitled to a very limited pre-termination hearing as "an initial check against mistaken decisions,” and that a hearing that includes oral or written notice of the charges, an explanation of the employer’s evidence, and an opportunity for the employee to tell his side of the story satisfies due process
- finding that the predecisional opportunity for an employee to respond “need not definitively resolve the propriety of the [action]” but rather “should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action”
Written by the judges who cited it.
Distinguished
Distinguished by Middleton v. City of Natchitoches, 954 So. 2d 356 (2007)
The City reiterates "[its] failure . . . to certify Ms. Middleton for the position of `supervisory' [sic] was neither a `dismissal' nor a `disciplinary action' and, therefore, Loudermill is inapplicable.
Distinguished by a later decision, 141 F.3d 224 (1998)
For this reason, the cases that the majority cites, see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-48, 105 S.Ct. 1487, 1493-97, 84 L.Ed.2d 494 (1985), are inapposite, for they deal with what constitutes a procedural due process violation in the first instance and do not implicate the analytically distinct doctrine of a cure for such a violation once it has occurred.
Distinguished by Campbell v. State Personnel Board, 57 Cal. App. 4th 281 (1997)
Loudermill, supra, 470 U.S. 532, is inapposite.
Distinguished by McKane v. City of Lansing, 938 F. Supp. 462 (1996)
The issue in Louder-mill was not the issue before this Court and the facts of Loudermill are distinguishable.
The opinion
*559 Justice Rehnquist,
dissenting.
In Arnett v. Kennedy, 416 U. S. 134 (1974), six Members of this Court agreed that a public employee could be dismissed for misconduct without a full hearing prior to termination. A plurality of Justices agreed that the employee was entitled to exactly what Congress gave him, and no more. The Chief Justice, Justice Stewart, and I said:
“Here appellee did have a statutory expectancy that he not be removed other than for ‘such cause as will promote the efficiency of [the] service.’ But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which ‘cause’ was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U. S. 886, 896-897 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive *560 right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.” Id., at 151-152.
In these cases, the relevant Ohio statute provides in its first paragraph that
“[t]he tenure of every officer or employee in the classified service of the state and the counties, civil service townships, cities, city health districts, general health districts, and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except ... for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office.” Ohio Rev. Code Ann. § 124.34 (1984).
The very next paragraph of this section of the Ohio Revised Code provides that in the event of suspension of more than three days or removal the appointing authority shall furnish the employee with the stated reasons for his removal. The next paragraph provides that within 10 days following the receipt of such a statement, the employee may appeal in writing to the State Personnel Board of Review or the Commission, such appeal shall be heard within 30 days from the time of its filing, and the Board may affirm, disaffirm, or modify the judgment of the appointing authority.
*561 Thus in one legislative breath Ohio has conferred upon civil service employees such as respondents in these cases a limited form of tenure during good behavior, and prescribed the procedures by which that tenure may be terminated. Here, as in Arnett , “[t]he employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which [the Ohio Legislature] has designated for the determination of cause.” 416 U. S., at 152 (opinion of Rehnquist, J.). We stated in Board of Regents v. Roth, 408 U. S. 564, 577 (1972):
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
We ought to recognize the totality of the State’s definition of the property right in question, and not merely seize upon one of several paragraphs in a unitary statute to proclaim that in that paragraph the State has inexorably conferred upon a civil service employee something which it is powerless under the United States Constitution to qualify in the next paragraph of the statute. This practice ignores our duty under Roth to rely on state law as the source of property interests for purposes of applying the Due Process Clause of the Fourteenth Amendment. While it does not impose a federal definition of property, the Court departs from the full breadth of the holding in Roth by its selective choice from among the sentences the Ohio Legislature chooses to use in establishing and qualifying a right.
Having concluded by this somewhat tortured reasoning that Ohio has created a property right in the respondents in these cases, the Court naturally proceeds to inquire what process is “due” before the respondents may be divested of *562 that right. This customary “balancing” inquiry conducted by the Court in these cases reaches a result that is quite unobjectionable, but it seems to me that it is devoid of any principles which will either instruct or endure. The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake. The results in previous cases and in these cases have been quite unpredictable. To paraphrase Justice Black, today’s balancing act requires a “pretermination opportunity to respond” but there is nothing that indicates what tomorrow’s will be. Goldberg v. Kelly, 397 U. S. 254, 276 (1970) (Black, J., dissenting). The results from today’s balance certainly do not jibe with the result in Goldberg or Mathews v. Eldridge, 424 U. S. 319 (1976). * The lack of *563 any principled standards in this area means that these procedural due process cases will recur time and again. Every different set of facts will present a new issue on what process was due and when. One way to avoid this subjective and varying interpretation of the Due Process Clause in cases such as these is to hold that one who avails himself of government entitlements accepts the grant of tenure along with its inherent limitations.
Because I believe that the Fourteenth Amendment of the United States Constitution does not support the conclusion that Ohio’s effort to confer a limited form of tenure upon respondents resulted in the creation of a “property right” in their employment, I dissent.
Today the balancing test requires a pretermination opportunity to respond. In Goldberg we required a full-fledged trial-type hearing, and in Mathews we declined to require any pretermination process other than those required by the statute. At times this balancing process may look as if it were undertaken with a thumb on the scale, depending upon the result the Court desired. For example, in Mathews we minimized the importance of the benefit to the recipient, stating that after termination he could always go on welfare to survive. 424 U. S., at 840-343 ; see also id., at 350 (Brennan, J., dissenting). Today, however, the Court exalts the recipient’s interest in retaining employment; not a word is said about going on welfare. Conversely, in Mathews we stressed the interests of the State, while today, in a footnote, the Court goes so far as to denigrate the State’s interest in firing a school security guard who had lied about a prior felony conviction. Ante, at 545, n. 10.
Today the Court purports to describe the State’s interest, ante, at 544-545, but does so in a way that is contrary to what petitioner Boards of Education have asserted in their briefs. The description of the State’s interests looks more like a makeweight to support the Court’s result. The decision whom to train and employ is strictly a decision for the State. The Court attempts to ameliorate its ruling by stating that a State may always suspend an employee with pay, in lieu of a predischarge hearing, if it determines that he poses a threat. Ibid. This does less than justice to the State’s interest in its financial integrity and its interest in promptly terminating an employee who has violated the conditions of his tenure, and ignores Ohio’s current practice of paying back wages to wrongfully discharged employees.