Shearer v. Leuenberger

Connolly, J.,

concurring.

I concur. The majority correctly sets forth the analysis used to determine whether a defendant is entitled to qualified immunity. However, I believe that the majority has incorrectly applied that analysis by failing to consider whether Shearer’s allegations, taken as true, stated a legally cognizable claim for the violation of a constitutional right. I conclude that Shearer was denied due process because she was not provided a hearing before her name was put in the Abused or Neglected Child Registry. I nonetheless conclude that the doctrine of qualified immunity bars Shearer’s claim because her right to a predeprivation hearing was not clearly established at the time the due process violation occurred.

*582 I. THRESHOLD QUESTION IN QUALIFIED IMMUNITY ANALYSIS

First, we must address whether Shearer’s allegations, taken as true, state a claim upon which relief may be granted. See Siegert v. Gilley, 500 U.S. 226 , 111 S. Ct. 1789 , 114 L. Ed. 2d 277 (1991). The majority avoids this threshold question, merely stating that “Shearer’s petition, when liberally construed, ¿leges the violation of a constitutional right.” However, alleging the violation of a constitutional right is not equivalent to stating a legally cognizable claim for the violation of such a right. A theory of recovery is not itself a cause of action. Olsen v. Olsen, 248 Neb. 393 , 534 N.W.2d 762 (1995). Thus, the mere invocation of “due process” is not sufficient to pass the threshold.

In Siegert , the U.S. Supreme Court granted certiorari to clarify the “analytical framework for determining whether a plaintiff’s allegations are sufficient to overcome a defendant’s defense of qualified immunity asserted in a motion for summary judgment.” 500 U.S. at 231 . The plaintiff, a former government employee, had received an extremely unfavorable review from his supervisor. That review caused a potential employer to deny the plaintiff a position. The plaintiff brought an action against his former supervisor, alleging, inter alia, that the supervisor’s review was a malicious, defamatory statement that infringed the plaintiff’s liberty interests, in violation of the Due Process Clause of the Fifth Amendment. The supervisor asserted the defense of qualified immunity.

The U.S. Court of Appeals assumed, without deciding, that if the supervisor’s alleged defamatory statement was malicious, the supervisor’s statement violated the plaintiff’s due process rights. The appellate court nonetheless determined that the allegations in the plaintiff’s petition were insufficient to state a claim, due to the “ ‘heightened pleading standard’ ” in defamation actions. 500 U.S. at 227 . Accordingly, the court of appeals held that the supervisor should be granted qualified immunity.

The Supreme Court, noting that the court of appeals had relied on a “heightened pleading standard,” held that the plaintiff’s claim “failed at an analytically earlier stage of the inquiry into qualified immunity: His allegations, even if accepted as true, did not state a claim for violation of any rights secured to *583 him under the United States Constitution.” 500 U.S. at 227 . The Court determined that the court of appeals had erred in assuming, without deciding, that if the plaintiff satisfactorily alleged that the supervisor’s unfavorable review was written with malice, a constitutional claim would be stated. “A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” 500 U.S. at 232 .

In analyzing the qualified immunity question, the Court first addressed whether the plaintiff had stated a legally cognizable claim for the violation of a constitutional right. The Court held that the plaintiff’s reputation was not constitutionally protected, even if the alleged defamatory statements were maliciously made, and that the plaintiff had failed to state such a claim. The Court never reached the question of whether the right, alleged by the plaintiff to have been violated, was clearly established. Indeed, the Court could not have determined whether the right was clearly established when that right did not exist.

Siegert demonstrates the distinction between the existence of a constitutional right and whether the existence of that right is clear to a government official. To state a claim for the violation of a constitutional right, that right must exist. If there is no such right, or if the alleged facts, taken as true and construed most favorably to the plaintiff, would not entitle the plaintiff to relief for the violation of a constitutional right, a court need not proceed to the next step in a qualified immunity analysis. It is the next step that determines whether that right was clearly established when the conduct occurred.

This analysis was affirmed in County of Sacramento v. Lewis, 523 U.S. 833 , 841-42 n.5, 118 S. Ct. 1708 , 140 L. Ed. 2d 1043 (1998), wherein the Court stated:

[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question----

*584 Justice Stevens suggests that the rule of Siegert should not apply where, as here, the constitutional question presented “is both difficult and unresolved.” ... But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the [defendant] acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional. In practical terms, escape from uncertainty would require the issue to arise in [future suits] .... [T]herefore the better approach is to determine the right before determining whether it was previously established with clarity.

(Emphasis supplied.) (Citations omitted.)

Consequently, the threshold question in a qualified immunity case is not whether the plaintiff has alleged, in a colloquial sense, the violation of a constitutional right, but, rather, whether the plaintiff’s allegations, taken as true, are sufficient to state a legally cognizable claim for the violation of such a right. See, Hodge v. Jones, 31 F.3d 157 (4th Cir. 1994); Bella v. Chamberlain, 24 F.3d 1251 (10th Cir. 1994).

This threshold inquiry is purely a question of law ... and though this inquiry takes place in the context of a qualified immunity defense, the same rules governing dismissal of complaints apply. We “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” ... A complaint may be dismissed for failure to state a claim “only when it appears that the plaintiff can prove no set of facts in support of the claim[] that would entitle the plaintiff to relief.”

*585 (Emphasis supplied.) Bella v. Chamberlain, 24 F.3d at 1254 . See, also, Hollingsworth v. Hill, 110 F.3d 733 (10th Cir. 1997); Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642 (10th Cir. 1988). “If the plaintiff is unable to marshal evidence indicating that the conduct complained of violated the law as presently interpreted, it is unnecessary to consider whether the law was clearly established at the time such conduct occurred.” (Emphasis supplied.) Snell v. Tunnell, 920 F.2d 673 , 696 n.21 (10th Cir. 1990).

Because the majority failed to do so, I analyze whether Shearer’s allegations, taken as true, stated a legally cognizable claim for the violation of a constitutional right.

II. DUE PROCESS

Shearer contends that the requirements of due process were not met by the procedures used by DSS in connection with the placement in and removal of her name from the Registry. Although Shearer’s petition does not specify whether the alleged deprivation of due process is procedural or substantive in nature, Shearer’s brief argued that the deprivation was procedural. Moreover, the brief’s argument was limited to the deprivation of a liberty interest. Thus, liberally construed, Shearer’s petition alleges that DSS deprived her of a liberty interest by failing to provide her with fair notice and a hearing prior to putting her name in the Registry.

Procedural due process limits the ability of the government to deprive people of interests which constitute “liberty” or “property” interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard. Bauers v. City of Lincoln, 255 Neb. 572 , 586 N.W.2d 452 (1998). When examining a claim that one is being deprived of a liberty interest without due process of law, a three-stage analysis is employed. In re Interest of R.G., 238 Neb. 405 , 470 N.W.2d 780 (1991), overruled on other grounds, O’Connor v. Kaufman, 255 Neb. 120 , 582 N.W.2d 350 (1998). The question at the first stage is whether there is a protected liberty interest at stake. Id. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. *586 Id. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which is due. Id.

1. Liberty Interest

In Wisconsin v. Constantineau, 400 U.S. 433 , 91 S. Ct. 507 , 27 L. Ed. 2d 515 (1971), the Supreme Court addressed the constitutionality of a state statute that permitted government officials to post notices banning the sale of intoxicating liquors to certain individuals who exhibited certain traits. The statute did not provide the individual in the posting with notice and a hearing. The Court held that the statute violated due process, stating that “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” 400 U.S. at 437 .

However, in Paul v. Davis, 424 U.S. 693, 697 , 96 S. Ct. 1155 , 47 L. Ed. 2d 405 (1975), the Court approved the posting of the plaintiff’s name and photograph on a flyer displaying ‘“active shoplifters’” that city and county police distributed to local merchants. The Court stated that while it had previously

pointed out the frequently drastic effect of the “stigma” which may result from defamation by the government in a variety of contexts . . . reputation alone, apart from some more tangible interests such as employment, is [n] either “liberty”. [n]or “property” by itself sufficient to invoke the procedural protection of the Due Process Clause.

424 U.S. at 701 . The Court distinguished Constantineau , noting that the governmental action in that case had done more than damage the individual’s reputation; the action had “deprived the individual of a right previously held under state law — the right to purchase or obtain liquor in common with the rest of the citizenry.” 424 U.S. at 708 . The Court stated that it was the alteration of the individual’s legal status in Constantineau , combined with the injurious defamation, which “justified the invocation of procedural safeguards.” 424 U.S. at 709 .

“Although Paul is the foundation for all subsequent cases dealing with governmental defamation, its meaning is not *587 unambiguous.” Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir. 1989). Nonetheless, when faced with the task of interpreting Paul , courts have held that to establish a constitutional violation, one must establish a stigma resulting in the impairment of some right other than reputation, or “ ‘stigma plus.’ ” Id. Therefore, the question is, Does the placement of an individual’s name in the Registry cause “stigma plus”?

In Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994), the court held that the inclusion of the plaintiff’s name in New York’s central register resulted in stigma, i.e., public opprobrium and damage to reputation. The court noted that inclusion in the register brands an individual a “child abuser, which certainly calls into question [one’s] ‘good name, reputation, honor, or integrity.’ ” Id. at 1000 , quoting Board of Regents v. Roth, 408 U.S. 564 , 92 S. Ct. 2701 , 33 L. Ed. 2d 548 (1972). The court noted that even the limited disclosure of information contained in the register was sufficient to establish stigma because New York’s scheme required certain employers to consult the register.

The court also held that inclusion in the register met Paul's “plus” requirement. The court noted that Paul's holding requiring more than mere defamation to support a cognizable liberty interest indicates that the normal repercussions of a poor reputation, including loss of employment opportunities, are likewise insufficient to establish a liberty interest. “ ‘ [S]o long as such damage flows from injury caused by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not [constitutionally] recoverable ....’” (Emphasis omitted.) Valmonte v. Bane, 18 F.3d at 1001 , quoting Siegert v. Gilley, 500 U.S. 226 , 111 S. Ct. 1789 , 114 L. Ed. 2d 277 (1991).

However, the court noted that the inclusion of the plaintiff’s name in New York’s register did more than merely defame the plaintiff, it placed a “tangible burden on her employment prospects.” Id. This conclusion was based on New York’s requirement that all child-care providers consult the register when hiring. Thus, by operation of law, potential employers would be informed of the plaintiff’s inclusion on the register. “This is not just the intangible deleterious effect that flows from a bad reputation. Rather, it is a specific deprivation of her opportunity to seek employment caused by a statutory impedi *588 ment established by the state.” Id. at 1001. Accordingly, the court held that the plaintiff had established a liberty interest.

The Eighth Circuit has addressed a similar statutory scheme and held that identifying individuals as child abusers gives rise to a liberty interest. Bohn v. County of Dakota, 772 F.2d 1433 (8th Cir. 1985). However, the Eighth Circuit did not base this conclusion on an impairment of employment rights; rather, the “plus” was the impairment of the Bohns’ familial rights.

[T]he Bohns have a protectible [sic] interest in their reputations at stake in this case. By identifying the Bohns as child abusers, investigating the quality of their family life, and maintaining data on them, the County Department [of Social Services] exposed them to public opprobrium and may have damaged their standing in the community. . . .

. . . When the County Department found Bohn to be a child abuser, it drove a wedge into this family and threatened its very foundation. The stigma Mr. Bohn suffers as a reported child abuser undoubtedly has eroded the family’s solidarity internally and impaired the family’s ability to function in the community. In light of these clear adverse effects on familial integrity and stability, we find that Mr. Bohn’s reputation is a protectible [sic] interest. Because this stigma strikes so directly at the vitality of the family, we find the reputation interest at stake to be clearly distinguishable from the respondent’s record of petty crimes in Paul [v. Davis, 424 U.S. 693 , 96 S. Ct. 1155 , 47 L. Ed. 2d 405 (1975)], which was tied to no other protectible [sic] interest.

Bohn v. County of Dakota, 772 F.2d at 1436 n.4.

Several state courts that have addressed whether central register statutes violate due process have also held that the inclusion of one’s name on such a register implicates a liberty interest, either under the federal or a state constitution. See, e.g., Petition of Preisendorfer, 719 A.2d 590 (N.H. 1998); State v. Jackson, 269 Ga. 308 , 496 S.E.2d 912 (1998); A.Y v. Com., Dept. of Public Welfare, 537 Pa. 116 , 641 A.2d 1148 (1994); Watso v. Dept. of Social Services, 841 P.2d 299 (Colo. 1992); Matter of East Park High School, 314 N.J. Super. 149 , 714 A.2d 339 (1998).

*589 However, several courts have held to the contrary. See, e.g., Hodge v. Jones, 31 F.3d 157 (4th Cir. 1994); Arkansas Dep’t of Human Servs. v. Heath, 312 Ark. 206 , 848 S.W.2d 927 (1993); Carter v. Gordon, 28 Va. App. 133 , 502 S.E.2d 697 (1998). In Hodge v. Jones, supra, the court addressed whether the government’s maintenance of records of a child abuse investigation of the plaintiffs implicated the plaintiffs’ liberty interest in familial privacy. The court held that no such interest attached, since the maintenance of such records has no significant impact on the child-parent relationship or on the family’s ability to function. Id. The court distinguished Bohn v. County of Dakota, supra, in a footnote, noting that in Bohn , the social workers had “repeatedly met with the Bohn family in an attempt to halt the purported abuse and related problems, thereby engaging in a campaign of intrusive conduct,” whereas in Hodge, once the investigation was complete, the record was allowed to “lie fallow.” 31 F.3d at 164.

The Hodge court’s attempt to distinguish Bohn is unpersuasive. Neb. Rev. Stat. § 28-713 (Reissue 1995) requires DSS to investigate child abuse allegations and to “provide such social services as are necessary and appropriate under the circumstances to protect and assist the child and to preserve the family.” Thus, DSS is required to engage in an “intrusive campaign” of repeated meetings with the family, as in Bohn , if such a campaign is necessary and appropriate under the circumstances. DSS’ involvement is not limited to making reports that are designed to “lie fallow.” See Neb. Rev. Stat. § 28-713.01 (Reissue 1995). Rather, Nebraska’s statutory scheme mandates the type of comprehensive involvement that was at issue in Bohn .

In Arkansas Dep’t of Human Servs. v. Heath, supra, the Arkansas Supreme Court likewise held that the inclusion of one’s name in a register of child abusers does not implicate a liberty interest, relying on the U.S. Supreme Court’s decision in Paul v. Davis, 424 U.S. 693 , 96 S. Ct. 1155 , 47 L. Ed. 2d 405 (1975). The plaintiff in Heath had appealed his inclusion in the register as a “ ‘substantiated’ ” abuser through administrative channels and then to a court, which court concluded that the allegations of abuse were “ ‘unsubstantiated.’ ” 312 Ark. at 208 , *590 848 S.W.2d at 928 . Nonetheless, the statutes governing the register required the administrative agency to retain “unsubstantiated” reports for a period of 3 years. In a dissenting opinion, Justice Corbin noted the seeming inconsistency between the administrative and judicial processes.

What a hollow victory it is for Mr. Heath. He is declared innocent of child abuse in our state court system which utilized concepts of due process, but is still forced for three years to carry the label of child abuser by an administrative agency of the state acting under the auspices of the state legislature... .

Surely, the courts have the inherent power to provide a remedy to one whose rights have been violated by the capricious exercise of legislative power as in the instant case. What good does it do to provide Mr. Heath procedural due process in our court system but deny him a remedy or any sense of justice?

Arkansas Dept. of Human Services v. Heath, 312 Ark. at 219 , 848 S.W.2d at 933-34 (Corbin, J., dissenting).

In Carter v. Gordon, supra, the court rejected the plaintiff’s claim that inclusion in a central registry involved the plaintiff’s liberty interest in employment. The court noted that it was the action of the plaintiff’s employer that deprived the plaintiff of employment, not the administrative agency responsible for the register. The court found it significant that the plaintiff had pointed to no rule that inclusion in the register automatically disqualified an applicant for a particular position.

This argument ignores the fact that Paul's “plus” requirement requires only the impairment of a right. In Matter of East Park High School, 314 N.J. Super. 149 , 714 A.2d 339 (1998), the court noted that the inclusion in a central registry is inextricably intertwined with the capacity to obtain employment in a vast array of jobs involving children. The court held that the fact that the plaintiff had not asserted an interest in changing jobs at that point in time was of no consequence to the court’s liberty interest analysis. “The inclusion of her name in the Central Registry is a kind of Sword of Damocles poised above her head. Its clear effect is to inhibit her from even considering any life changes for fear of disclosure.” Id. at 163 , 714 A.2d at 347 .

*591 Neb. Rev. Stat. § 28-726 (Reissue 1995) ensures that employers dealing with children have access to the Registry. Subsection (4) provides access to any “agency having the legal responsibility or authorization to care for, treat, or supervise an abused or neglected child . . . who is the subject of a report.” The word “agency” is not limited to governmental agencies, nor is it limited to agencies specializing in the care of abused or neglected children. When addressing a similar statute, the New Jersey Superior Court held that the word “agency” applied to the New Jersey Department of Education, since that department has the responsibility to “ ‘supervise’ the care and treatment” provided to students while they are under temporary guardianship at a day school. Physical Abuse at Blackacre Acad., 304 N.J. Super. 168, 179-80 , 698 A.2d 1275, 1281 (1997). Thus, schools, hospitals, day care facilities, and virtually any other agency authorized to supervise children would have the right, when caring for a child known to be in the Registry, to access the Registry (a point DSS impliedly concedes in its brief).

Finally, insofar as one’s familial rights are concerned, Neb. Rev. Stat. § 43-107 (Reissue 1993) prohibits the entry of an adoption decree until a check of the Registry is on file with the court. Although the inclusion of one’s name in the Registry does not, per se, prohibit one’s adoption of a child, it most certainly would impede any adoption.

The placement of Shearer’s name in the Registry in the instant case was required by state law. It had the imprimatur of official action, which usually implies that the information at issue has been tried and tested according to the dictates of due process. This is unlike the posting in Paul v. Davis, 424 U.S. 693 , 96 S. Ct. 1155 , 47 L. Ed. 2d 405 (1975), which was, at most, a local effort by certain police officers. An employer would be expected to place much greater reliance on a listing in an official government repository than the obviously makeshift postings of local law enforcement. Thus, the instant case is easily distinguishable from Paul — the plaintiff in the instant case was faced with “stigma plus.”

Inclusion in the Registry is a stigma that fundamentally alters an individual’s relation to employers and family and thus, curtails the most basic liberties that a citizen by right may *592 enjoy. Therefore, I conclude that Shearer’s liberty interests were implicated in the instant case and thus, that the due process clause applies.

2. Procedural Protections Due

Having concluded that the Due Process Clause applies, the question is, What process is due? The majority correctly points out that under Neb. Rev. Stat. § 28-723 (Reissue 1995), an individual whose name is placed in the Registry may ask DSS to amend or expunge the report from the Registry, and that if DSS does not do so within 30 days, the individual is entitled to a fair hearing. However, this hearing is available only after the individual’s name has already been included in the Registry. See §§ 28-713.01 and 28-723. Shearer argues that she was entitled to notice and a fair hearing before her name was added to the Registry. Thus, the question is whether due process entitled Shearer to a predeprivation hearing, as opposed to a postdeprivation hearing.

As a general rule, the Due Process Clause requires that individuals receive notice and a meaningful opportunity to be heard before the government deprives them of their liberty interest. See, United States v. James Daniel Good Real Property, 510 U.S. 43 , 114 S. Ct. 492 , 126 L. Ed. 2d 490 (1993); Cleveland Board of Education v. Loudermill, 470 U.S. 532 , 105 S. Ct. 1487 , 84 L. Ed. 2d 494 (1985). However, “[w]e tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in ‘ “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” ’ ” United States v. James Daniel Good Real Property, 510 U.S. at 53 , quoting Fuentes v. Shevin, 407 U.S. 67 , 92 S. Ct. 1983 , 32 L. Ed. 2d 556 (1972). See, also, Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S. Ct. 1148 , 71 L. Ed. 2d 265 (1982) (noting that postdeprivation process may be sufficient when state must necessarily act quickly or it is impractical to provide predeprivation process). Whether such an exception applies requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings. United States v. James Daniel Good Real Property, supra. In this regard, we consider (1) the *593 private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the state’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id.; In re Interest of R.G., 238 Neb. 405 , 470 N.W.2d 780 (1991), citing Mathews v. Eldridge, 424 U.S. 319 , 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976).

(a) Private Interest

An individual’s liberty interest in employment is clearly substantial, e.g., Petition of Preisendorfer, 719 A.2d 590 (N.H. 1998), as is an individual’s liberty interest in familial relationships, e.g., Petition of Bagley, 128 N.H. 275 , 513 A.2d 331 (1986).

(b) Risk of Erroneous Deprivation

Even more clear is the enormous risk of erroneous deprivation presented by allowing DSS to place names, and more important, its “case status determination” in the Registry without a predeprivation hearing. See Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994). Nebraska statutes do not provide any specific standards that must be met prior to the placement of information in the Registry. Neb. Rev. Stat. § 28-720 (Reissue 1995) states only that all cases in the Registry shall be classified as either (1) court-substantiated, (2) petition to be filed, (3) investigation inconclusive, or (4) unfounded report, whichever the case may be. DSS has enacted a regulation establishing when a particular case shall be entered into the Registry. According to state regulation 390 Neb. Admin. Code ch. 4 § 008.01 (1995), once the-“initial assessment phase” is complete, the protective services worker will make a “case status determination.” The regulation states that “[t]he decision at this point is whether there is credible evidence to support the finding that child abuse or neglect as defined by state statute has occurred.” (Emphasis supplied.) Id. The “case status determinations” available are identical to those classifications listed in § 28-720. Once a case status determination is made, the “case status determination *594 will be entered into the Child Welfare Information System in a timely manner.” Id.

In Valmonte v. Bane, 18 F.3d at 1004 , the court held that the “ ‘some credible evidence’ ” standard led to an unacceptably high level of risk.

The “some credible evidence” standard does not require the factfinder to weigh conflicting evidence, merely requiring the local DSS to present the bare minimum of material credible evidence to support the allegations against the subject... .

The “some credible evidence” standard is especially dubious in the context of determining whether an individual has abused or neglected a child. Such determinations are inherently inflammatory, and “unusually open to the subjective values of’ the factfinder. . . . They are especially open to such subjectivity when the factfinder is not required to weigh evidence and judge competing versions of events, and where one side has the greater ability to assemble its case.

Id.

The obvious lack of judgment on the part of the caseworker in the instant case demonstrates the high risk of error in Nebraska’s system. One simply does not base a judgment solely on the hearsay contained in a police report without expecting error to occur. If such a system is followed, error is inevitable.

(c) State Interest

DSS undoubtedly has a strong interest, under the doctrine of parens patriae, in the protection of children within its borders. See In re Interest of R.G., supra. However, we need not weigh the “fiscal and administrative burdens” that any additional procedural requirement would entail, since the statute already requires a fair hearing, with all its attendant costs. Shearer is not asking for more procedure but an earlier procedure. Consequently, the more pertinent question in the instant case is what interest DSS has in a postdeprivation hearing as opposed to a predeprivation hearing.

DSS asserts that its interest in quickly registering the names of suspected child abusers to prevent further instances of such *595 conduct defeats Shearer’s argument that such suspects have the right to a predeprivation hearing. However, it is difficult to see how DSS’ interest in protecting children is more efficiently served by entering suspects’ names immediately. Any risk of further harm to the child whose abuse or neglect gave rise to the involvement of DSS will already have been averted, regardless of when information is added to the Registry. See § 28-713 (stating that law enforcement agency receiving call reporting abuse and neglect shall take immediate steps to protect child). Moreover, to the extent that quickly placing information in the Registry leads to inaccuracies, DSS’ interests are disserved. See Dept. of Health & Rehab. Services v. S., 648 So. 2d 128 (Fla. 1995) (listing interests served by child abuse registries).

In short, the facts in the instant case belie DSS’ asserted need to forgo a predeprivation hearing. The incident giving rise to Shearer’s inclusion in the Registry occurred on June 28, 1995. For unexplained reasons, the DSS worker did not contact Shearer until August 21, almost 2 months after the child had allegedly been harmed. By the time DSS put Shearer’s name in the Registry on December 4, 5 months had passed. Certainly a predeprivation administrative hearing could have taken place in that time, had DSS acted diligently.

(d) Balancing

As the above analysis demonstrates, the individual interest in the instant case is strong, the risk of error is high, and DSS’ interest in forgoing a predeprivation hearing is low. If erroneous information is added to the list, the damage to the individual may be done before a postdeprivation hearing is conducted to remove that information. However, the risk of damage to DSS if a predeprivation hearing is required is low. Therefore, I conclude that due process requires a predeprivation hearing prior to the placement of information in die Registry.

3. Denial of Due Process

Having determined what process is due, the final question of the due process analysis is whether there was a denial of that process which is due in the instant case. The evidence conclusively indicates that Shearer did not receive a predeprivation *596 hearing before her name was placed in the Registry. Thus, her due process rights were violated.

III. CLEARLY ESTABLISHED

Because Shearer’s allegations state a legally cognizable claim for the violation of her constitutional right to due process, the next question is whether that right was clearly established at the time DSS acted. We note that this court has not previously addressed the application of due process to Nebraska’s Registry statutes. By its plain language, this statutory scheme contemplates only a postdeprivation hearing. A right cannot be said to have been clearly established when the conduct at issue was authorized by statute and no court had interpreted the statute at the time that the conduct at issue occurred. Duncan v. Gunter, 15 F.3d 989 (10th Cir. 1994). Accordingly, the right to a predeprivation hearing was not clearly established at the time that the unconstitutional conduct occurred. Therefore, the majority properly concluded that qualified immunity applies, and I concur.

Miller-Lerman, J., joins in this concurrence.