Why You Were Put on the CACI First, Without a Hearing

Due process is something many people – mainly those being falsely accused of a crime – will lean on in times of crisis.

Very often, “due process” is used as something of a blanket term. Those panicked at being subjected to false allegations hold onto the ideal that we're all innocent until proven guilty…or that we’re supposed to be treated like we’re innocent until proven guilty.

For further clarification, the 14^th Amendment states clearly, in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

It sounds cut and dried, but like many laws, that couldn't be further from the truth.

Both vagueness and ambiguities litter the language of our laws and statutes.

Think about it—if the idea that we were all innocent until proven guilty was ironclad, then suspects wouldn't be held in custody without bail. Nor would we see cash and property seizures until a final settlement was reached or verdict was made.

While we all wish these laws were a bit more straightforward, much is left open to interpretation. More specifically, this is something we can see in the implementation of something called “pre-deprivation hearings.”

To review this topic, we’ll borrow from the following paper: Donald P. Simet. The right to a Pre-Deprivation Hearing Under the Due Process Clause—Constitutional Priorities and a Suggested Method for Making Decisions. Creighton Law Review Vol. 11, p. 1201 (1978).

Let’s look at the language of the “due process” clause again. The US Constitution's 14^th Amendment reads in part, "nor shall any State deprive any person of life, liberty, or property, without due process of law." This means that if the government wants to take away (i.e., deprive) you of your life, liberty, or property…it cannot do so without giving you an opportunity to fight the deprivation.

If government first deprives you of your property or liberty and then gives you an opportunity to contest the deprivation in a hearing setting, then that is called a post-deprivation hearing (because the hearing takes place after the government already deprived you of the your property or liberty). If the hearing comes first, it's called a pre-deprivation hearing.

Whether or not you are entitled to a pre-deprivation hearing or post-deprivation hearing depends on if the government is depriving you of "property" or of "liberty." There are often different rules for property issues than there are for liberty issues.

To reiterate: A pre-deprivation hearing occurs before the government attempts to deprive you of life, liberty, or property. A post-deprivation hearing takes place after the government infringes on your right to life, liberty, or property.

At first glance, one would hope you'd be granted the first option. Any layman would and should take issue with their rights being taken away without first having their say.

Unfortunately, that’s not always the case. In days gone by, “the Court's initial decisions greatly expanded the extent of the pre-deprivation protection.” Yet, “in more recent decisions, the Court has not only refused to expand the right but seems to have implicitly overruled some of its earlier holdings.” This has allowed the government to deprive you of your rights before giving you a hearing to dispute the deprivation.

In 1969, there was a statute in Wisconsin, allowing creditors to prevent debtors from receiving half their wages from employers. It could occur without any hearing being involved.

This case, known as Sniadach v. Family Finance Corp, saw Justice Douglas rule that this property was being taken without procedural due process.

It's worth noting that Douglas's view on these interests was very restrictive, confining it to a loss that leads to serious injury to the owner of the property. Under the court’s decision, the need for a pre-deprivation hearing increased depending on the level of deprivation.

Justice Douglas's ruling is believed by many experts to focus too strongly on the seriousness of the deprivation.

Much can be left to the decision-making process and interpretation. People in the same living circumstances could have their wages or payments withheld, with the level of deprivation being considered different, depending on who’s making the decision.

In an another case just one year later, the court critiqued the government’s ability to terminate welfare payments in case called Goldberg v. Kelly.

If a caseworker decided that someone who was receiving payments was no longer eligible to receive payments, the caseworker would report it to their supervisor. The supervisor could decide to terminate the individual’s welfare payments immediately, though the individual could have a hearing to dispute the termination of payments down the line, after they’d already stopped getting their checks.

The court held that the government could not terminate someone’s welfare payments without firs allowing the person to contest the termination: “[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.”

The facts in the Mathews v. Eldridge case (from 1976) resemble those in Goldberg—but this one has to do with disability benefits.

What it comes down to is people receiving payments must show continual proof of their eligibility via the requisite diagnostic techniques.

Given there is a perceived discrepancy, the claimant can present their evidence to an examiner in the Social Security Administration's (SSA) Bureau of Disability Insurance. Generally, these rulings are in favor of the SSA, in which case, payments are immediately terminated.

It could take up to one year to receive a post-deprivation hearing. Yet, the court pointed out that the individuals had access to other payments, such as welfare assistance. This factor is what distinguished the Mathews v. Eldridge case from Goldberg. The court also believed that due to the medical reports involved, there was less chance for error than there was in Goldberg.

Ultimately, the court said that whether or not people are entitled to a pre-deprivation hearing in any given situation should depend on a balancing of government interests versus individual interests.

Today, California courts do not exactly follow any of those prior cases. Instead, they follow a modified version of the three-part balancing test used in Mathews v. Eldridge. California courts uses its own four-part balancing test as set forth in People v. Ramirez.

The Ramirez court wrote, “More specifically, identification of the dictates of due process generally requires consideration of (1) the 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, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

One issue with the cases we’ve discussed is the rulings all come down to specific nuances and intricacies that lead to the final decision. It may seem fair at first glance, but the Mathews decision contradicts both Goldberg and Sniadach. When it comes to our constitutional rights to property, we should have our say.

As it relates to CACI grievance hearings, you are only given a post-deprivation hearing; you are put on the CACI first, and then you are given the chance to dispute the listing in a hearing. So far (as of this writing in 2020), the courts have not invalidated the CACI grievance process. We hope that changes, and we hope to be among the lawyers that force the change. (We actively working on that.)