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19. Which of the following best describes the initial burden of persuasion in that suit?
The Personnel Handbook of a particular city contains all of that city's personnel policies. One section states, «where feasible and practicable, supervisors are encouraged to follow the procedures specified in this Handbook before discharging a city employee.» Those specified procedures include a communication to the employee of the reasons for the contemplated discharge and an opportunity for a pre-termination trial-type hearing at which the employee may challenge those reasons. After a year of service, the secretary to the City Council was discharged without receiving any communication of reasons for her contemplated discharge and without receiving an opportunity for a pre-termination trial-type hearing. The secretary files suit in federal district court to challenge her discharge solely on constitutional grounds.
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Most procedural due process problems involve the issue of whether the thing being taken constitutes «property.» Property includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for (or a unilateral expectation of) the benefit is not enough. There must be a legitimate claim or «entitlement» to the benefit under state or federal law. Board of Regents v. Roth, 408 U.S. 564 (1972). An example of a property interest includes continued public employment when there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for «cause,» then there is a property interest, Arnett v. Kennedy, 416 U.S. 134 (1974), but if the employee holds his position only at the «will» of the employer, there is no property interest in continued employment. Bishop v. Wood, 426 U.S. 341 (1976).
C is correct. When challenging the deprivation of a constitutionally-protected right without due process of law, a plaintiff first must demonstrate that she has a constitutionally-protected right. Here, the secretary must first demonstrate that state law created a constitutionally-protected interest either in her job or in the procedures for termination. Only this preliminary showing will trigger the procedural due process protections afforded to property interests in public employment.
A is incorrect. It cannot be the initial burden for the City Council to establish that its handbook created no constitutionally protected interest in employment or the procedures by which such employment is terminated because the Council is the defendant, and the defendant is under no obligation to prove the absence of a constitutionally-protected right.
B is incorrect. The question asks about the initial burden. The analysis does not proceed to the reason for the secretary's termination until she demonstrates that she had a constitutionally-protected right. If she had no constitutionally-protected right, then her employer does not need to have good cause to fire her, and would not have to afford her any process.
D is incorrect. This answer is only partially correct. Although the secretary does have the initial burden of persuasion, it is not that she reasonably believed that she could work for the city as long as she wished. This would also be a higher bar than is necessary to satisfy because a person can have a constitutionally-protected right in employment that is less than being able to work for as long as the person wishes. The right could be less, like a right to continued employment absent good cause for discharge or a right to hearing before termination.