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Probable Cause – Judicial Review – Department of Public Instruction

By: Derek Hawkins//November 12, 2018//

Probable Cause – Judicial Review – Department of Public Instruction

By: Derek Hawkins//November 12, 2018//

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7th Circuit Court of Appeals

Case Name: Mark Fritz v. Tony Evers

Case No.: 17-2955

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Probable Cause – Judicial Review – Department of Public Instruction

Wisconsin requires public officials to report certain events or suspicions about teachers to the Superintendent of Public Instruction. Wis. Stat. §115.31(3)(a). When a qualifying report is made, the state lists the teacher on a public website as “under investigation”. Wis. Stat. §115.31(6)(b). Such a report was made about Mark Frid in March 2012. In August 2013 the Department of Public Instruction told Frid that the report about him was not supported by probable cause to believe that he had engaged in misconduct. His name was removed from the site. In this suit under 42 U.S.C. §1983 Frid alleges that schools would not hire him while he was under investigation. He contends that the state had to afford him a hearing before puging his name on the list of persons under investigation.

There’s a further problem. Frid contends that the Constitution requires a hearing before public notice that a charge is under investigation. Yet our legal tradition is notice first, hearing later. Thus criminal charges are filed, whether by indictment or information, before the accused has an opportunity for a hearing. People are arrested, and criminal investigations begun, before adversarial hearings. If the arrest occurs in a public place, even an ex parte warrant is unnecessary. See United States v. Watson, 423 U.S. 411 (1976). A hearing occurs promptly after an arrest only if the suspect remains in custody. See County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991). Civil proceedings also begin long before a hearing. Both civil and criminal charges are public, even though being under a cloud may make it hard for the defendant to get a new job while the proceedings are ongoing.

Probable cause is required to support custody, see Manuel v. Joliet, 137 S. Ct. 911 (2017), but not to support a public charge of crime. “[T]here is no such thing as a constitutional right not to be prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). A criminal trial may occur months if not years after charges become public, and in the interim the accused does not have a constitutional right to a hearing at which a judge will determine whether the grand jury should have issued an indictment. See Kaley v. United States, 571 U.S. 320 (2014).

Administrative investigations likewise precede hearings. The Federal Trade Commission or Securities and Exchange Commission may conduct a public investigation and defer a hearing until after it issues a charge and discovery has concluded. Judicial review is impossible until the agency makes its final decision. See FTC v. Standard Oil Co., 449 U.S. 232 (1980). Wisconsin followed the traditional approach: it conducted an investigation to see whether a formal proceeding was warranted, and after concluding that it was not the state closed the investigation and removed the public listing. It would upset more than two centuries of practice to declare that approach a violation of the Constitution.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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