Decided: April 26, 1982.
ZOILA ALFONSO, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT
On appeal from the Appellate Division, Superior Court, whose opinion is reported at 176 N.J. Super. 493 (1980).
For affirmance -- Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal and remandment -- Chief Justice Wilentz and Justice Pashman. The opinion of the Court was delivered by Clifford, J. Wilentz, C.J., dissenting. Justice Pashman joins in this opinion.
[89 NJ Page 42]
On September 7, 1979 appellant, Zoila Alfonso (Alfonso), filed a claim for unemployment insurance benefits with the South Newark Claims Office of the Division of Employment Security, Department of Labor and Industry (Division). On September 25, 1979, while at the South Newark office, she was personally served with a "Notice of Determination," which stated that her claim was being denied because she had left work voluntarily. The notice, written entirely in English, also informed her that she had seven days in which to file an appeal of the determination. Alfonso neither reads nor speaks English.
For reasons not explained in the record, Alfonso did not have the document translated until October 5, 1977, ten days after she
[89 NJ Page 43]
had received it.*fn1 On that day, with the aid of the local community group that had translated the notice, she filed with the Division an appeal of the determination. On October 17, 1979, the Division's appeal tribunal entered an order dismissing the appeal because it had not been filed within the seven day period required by N.J.S.A. 43:21-6(b)(1). This order was subsequently affirmed by the Division's Board of Review (Board).
In her appeal of that affirmance before the Appellate Division, Alfonso argued that both the due process clause of the Fourteenth Amendment and Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, require that the notice of determination, including the notice of time in which to appeal, be given to claimants in a language that they can understand -- in this case Spanish. The Appellate Division rejected these arguments and affirmed the decision of the Board. Alfonso v. Board of Review, Department of Labor and Industry, 176 N.J. Super. 492 (1980). The matter is now before us for review because of the substantial constitutional question involved. R. 2:2-1.
Appellant's principal argument addresses the nature and extent of notice that is required under traditional notions of due process. In an oft-quoted passage, the United States Supreme
[89 NJ Page 44]
Court has articulated the fundamental nature of the notice requirements:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * * But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. "The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals." [ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S. Ct. 652, 657-58, 94 L. Ed. 865, 873-74 (1950) (citations omitted).]
These general principles form the proper analytical basis for our inquiry. The paramount question thus is whether the notice given to the claimant here was calculated "under all the circumstances" to convey the required information. The answer depends on an appraisal of the circumstances.
Appellant argues not that the notice was unclear per se, but rather that it was unclear to her solely because she is not literate in English. She alleges, and the Board does not dispute, that the agents of the Division who handed her the determination knew that she did not speak or read English. Under such circumstances, she maintains, the State was required by the due process considerations outlined by Mullane, supra, and echoed in the New Jersey cases, O'Connor v. Abraham Altus, 67 N.J. 106, 126 (1975); Feuchtbaum v. Constantini, 59 N.J. 167, 175 (1971), either to translate the notice for her or to give her a written translation. Logically extended, this argument leads to a requirement that when the State is obliged to give notice, it must provide such notice in a language comprehensible to the recipient, at least where the State is aware that the recipient is not fluent in English.
The highest courts in at least three states have rejected this argument. In two of those instances the courts were faced with situations nearly identical to those in this case.
In DaLomba v. Director of the Division of Employment Sec., 369 Mass. 92, 337 N.E. 2d 687 (Mass.1975), the Supreme Judicial Court of Massachusetts held that an unemployment claimant's
[89 NJ Page 45]
right to procedural due process was not violated when she was sent a notice written entirely in English, even though she was not fluent in English. The court said:
We do not believe that a notice in English, clear on its face, is insufficient under the statute merely because, as to persons under a language disability, it may not actually inform. English is the official language of this country and of this Commonwealth. Official communications in the English language are reasonable and are sufficient to constitute effective notice. [ Id. at 94, 337 N.E. 2d at 689, (footnote and citations omitted).]
Because the notice in English was adequate, the court upheld the denial of the request for review that was not filed within the statutory time limit.
The same result was reached, under similar circumstances, in Hernandez v. Department of Labor, 83 Ill. 2d 512, 48 Ill.Dec. 232, 416 N.E. 2d 263 (Ill.1981). The case involved the denial of unemployment benefits. The Supreme Court of Illinois rejected the argument that due process required that an out-of-time appeal be allowed where the reason for the tardiness was the claimant's inability to comprehend a notice written entirely in English. Likewise, the Supreme Court of California has held that the State was not required to issue welfare reduction notices in Spanish to those who the State knew were literate in Spanish but not in English. Guerrero v. Carleson, 9 Cal. 3d 808, 109 Cal.Rptr. 201, 512 P. 2d 833, cert. den., 414 U.S. 1137, 94 S. Ct. 883, 38 L. Ed. 2d 762 (1974), relying in part on Castro v. State, 2 Cal. 3d 223, 85 Cal.Rptr. 20, 466 P. 2d 244 (1970), wherein the court, emphasizing the substantial state interest in maintaining a single language system made it clear that there was no constitutional requirement that California adopt a bilingual electoral apparatus. See also Kuri v. Edelman, 491 F.2d 684 (7th Cir. 1974); Nuez v. Diaz, 101 Misc. 2d 399, 421 N.Y.S. 2d 770 (Sup.Ct.1979). The theory that unites all of these holdings is not complex. The courts have recognized, whether explicitly or implicitly, that in an English-speaking country, requirements of "reasonable notice" are satisfied when the notice is given in English.
[89 NJ Page 46]
These holdings are not born of any lack of appreciation for the difficulties that non-English speaking people encounter in our society. Those difficulties are many and burdensome. It is doubtless true, especially in areas where there is a high density of non-English speaking population, that administrative and humanitarian considerations would warrant the use of bilingual documents. The Board readily acknowledges as much. Indeed, as we were informed at oral argument, the Division has developed a Spanish language explanatory sheet for the Notice of Determination, for use in the cases of claimants who speak and understand Spanish and are deficient in English language skills.*fn2 But these salutary considerations by no means translate into a requirement, under procedural due process concepts, that the State adopt a policy mandating the use of such documents. The decision to provide translation, encompassing as it does the determination of when a translation should be provided, and to whom, and in what language, is one that is best left to those branches of government that can better assess the changing needs and demands of both the non-English speaking population and the government agencies that provide the translation.
Under the circumstances the notice given to the appellant satisfied the requirements of due process. In so holding, we number ourselves among those other courts, cited above, that have expressed the view that although bilingual or multilingual notices may in some instances be desirable, their use is not constitutionally required.
In addition to the due process argument, Alfonso also alleges that the Division's failure to provide bilingual notice violates the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The contention is without merit.
[89 NJ Page 47]
WILENTZ, C.J., dissenting.
On September 25, 1979, Zoila Alfonso was handed a Notice of Determination, a printed form, entirely in English. She does not understand English. The staff of the South Newark claims office apparently knew that she spoke only Spanish. Zoila Alfonso was required to respond to this notice by filing an appeal within seven days, the same amount of time available to English-speaking applicants. There is no reason to presume that she understood that this printed piece of paper required her to take action, let alone immediate action. There is also no reason to presume that had she known immediate action was required she would have been able to comply, that reliable translation facilities were within her reach, and if they were, that she would have been able to arrange a visit within the time required. There is nothing to suggest that Zoila Alfonso ever had an opportunity to appeal the adverse determination of her unemployment benefits claim.*fn1
[89 NJ Page 48]
When the State knows that a person does not understand English, it has an obligation to provide notice in that person's language with a sufficient amount of information to trigger inquiry or action that will result in an appeal, unless the burden of providing that notice is so great that it outweighs the benefits of doing so. Guerrero v. Carleson, 9 Cal. 3d 808, 109 Cal.Rptr. 201, 512 P. 2d 833, 841 (1973) (Tobriner, J., dissenting), cert. den., 414 U.S. 1137, 94 S. Ct. 883, 38 L. Ed. 2d 762 (1974). The burden is on the State to show that it would be unreasonable to require notice in the claimant's language in cases where simple notice of the right to appeal and time limit for action is all that is needed.
This result is clearly mandated by the due process guarantees of the Fourteenth Amendment of the United States Constitution. The majority cites Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), to reach a contrary result. But in fact, Mullane provides the strongest support for the conclusion that Zoila Alfonso was not
[89 NJ Page 49]
given notice of her right to appeal. In the passage quoted by the majority, the Court in Mullane included these words:
The notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance. [339 U.S. at 314, 70 S. Ct. at 657, 94 L. Ed. at 873 (citations omitted).]
The Court went on to say:
[W]hen notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. [339 U.S. at 315, 70 S. Ct. at 658, 94 L. Ed. at 874.]
Mullane established a constitutional balancing test that requires us in determining whether due process was satisfied to weigh the burden on the state of giving notice that actually "convey[s] the required information" against the benefits to the individual receiving notice (and all others who will subsequently be benefitted by the state's efforts) in order to determine the state's duty in a given case.
Against [the] interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment. This is defined by our holding that "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779,  58 L. Ed. 1363, 1368. This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. [339 U.S. at 314, 70 S. Ct. at 657, 94 L. Ed. at 873.]
The state must prove that reasonable efforts have been made to give notice; the reasonableness of those efforts is measured in the Mullane balance.
The burden on the state to provide foreign language notice of appeal is composed of a number of factors. The state must determine what language the claimant speaks. This may involve training its personnel to elicit this information from applicants for benefits. It must acquire a translation of the salient material -- usually very little -- into the claimant's language, and communicate this translated information to the
[89 NJ Page 50]
applicant.*fn2 These requirements amount to dollar expenditures and a degree of continuing vigilance on the part of state personnel to ensure that applicants are properly notified of their right to appeal adverse claims.
The benefits to be derived from foreign language notice must be measured not only by the value to the individual whose claim is at issue, but also to others whose interests will be protected in the future. For the individual claimant, benefits include a real (as opposed to theoretical) opportunity to appeal, so that the applicant may acquire review of his or her claim without undue barriers not faced by an English-speaking claimant. If the claimant proves successful, she will receive the monetary benefits to which she is entitled. In addition to its cash value, this grant represents the claimant's right to enjoy the same benefits to which her years of work entitle her, as do all other claimants who qualify for this insurance.
Moreover, notice in the claimant's language relieves her of the difficult task of determining in a vacuum whether a notice is official and, if so, how quickly official notices must be translated. It is no small burden to acquire an accurate translation.*fn3 Claimants may have to travel some distance to an agency that assists non-English speaking persons to assure them of adequate assistance. This in itself is difficult when one does not speak
[89 NJ Page 51]
the language of a host country, and with less and less public and private money available to fund such foreign language assistance programs, they are becoming fewer and farther between.
If the claimant is handed the determination notice by a staff member at the claims determination office, this will be some indication that the notice is official, and requires a translation. It does not, however, indicate the need for an especially speedy translation. Moreover, if a staff member makes a good faith attempt to communicate the substance of the determination to the claimant, and does not or cannot explain the right of appeal and the time limit for action, the claimant may leave the office believing she possesses all the critical information contained in the notice. She may thus abandon any effort to pursue a claim that resulted in an adverse determination. Alternatively, if the notice is mailed, the claimant must consider how important the printed message may be in order to decide how quickly to seek a translation.*fn4 It is not unreasonable to assume that a non-English speaking person needing translation assistance collects several pieces over a number of days before traveling to a service agency for help, thereby risking missing a deadline by a few days.
After the value of translation to the individual claimant is considered the balancing test must be completed by determining whether other persons will benefit by the effort expended by the state on that claimant's behalf. Once a translation is acquired and personnel trained to use it, the burden or cost of providing foreign language notice to others who follow is greatly reduced while the benefit is increased for each person who is "actually inform[ed]." Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at 315, 70 S. Ct. at 658, 94 L. Ed. at 874. [89 NJ Page 52] Applying this test to the present case, it is clear that English notice to Zoila Alfonso was "a mere gesture [and] not due process," and that she was denied notice of her right to appeal the adverse ruling of her benefits claim. Mullane, supra, 339 U.S. at 315, 70 S. Ct. at 658. The burden on the Department of Labor and Industry does not seem great. The State must pay for translations to be made and determine in what manner this translated information will be communicated to the claimant. It need not embark on a long and costly process to translate all the forms it uses in the benefits claims process.*fn5 It could simply attach a notice in Spanish that stated that the accompanying letter contained the decision in the person's benefits claim and required the applicant to act within seven days after its delivery but no later than ten days after its mailing if he wanted to appeal; and that failure to act within that time would result in a loss of the right to appeal the decision. N.J.S.A. 43:21-6(b)(1).*fn6 This would clearly tell the claimant that prompt action [89 NJ Page 53] was required without burdening the State with the responsibility of translating numerous forms.*fn7
[89 NJ Page 56]
Balanced against this requirement are the benefits to be realized in this case. A Spanish-language notice would have given Zoila Alfonso the opportunity to appeal her denial of unemployment insurance benefits. She was functionally denied the right of appeal available to English-speaking claimants, and, assuming she was otherwise qualified for them, denied the cash benefits of unemployment insurance because she did not get a translation quickly enough. A Spanish-language notice of the right to appeal would rectify both these penalties.
The benefits are multiplied when it is considered how many applicants may need Spanish-language notice. Persons of Hispanic origin make up a sizeable portion of New Jersey's population.*fn8 The unemployment claims division may thus be able to assist a good many applicants if it is equipped with Spanish translations of the more important claims provisions.*fn9
Moreover, there are special considerations of fairness to be accorded Spanish-speaking persons. Spanish, unlike any other language, has quasi-official status in the United States because of our relationship to the Commonwealth of Puerto Rico. Puerto Ricans are United States citizens with the same responsibilities and benefits of other United States citizens, but schools in [89 NJ Page 57] Puerto Rico are conducted in Spanish. Thus, unlike non-English speaking immigrants from foreign countries, non-English speaking Puerto Ricans are not required to learn English before they may exercise their right to vote as United States citizens.*fn10 Spanish is thereby given special recognition as the native language of many United States citizens. While the majority may be correct that the United States may be characterized as "an English speaking country," see 89 N.J. at 51, neither the United States nor the State of New Jersey has established English as its official language.*fn11 And when, implicitly and
[89 NJ Page 58]
explicitly, Spanish has achieved some measure of official recognition, the Spanish-speaking population may reasonably expect that information of great importance to their well-being will be conveyed to them in a manner that communicates the essential information required.*fn12
I would hold here, then, that for Spanish-speaking persons in New Jersey, the benefits of providing Spanish language notice
[89 NJ Page 59]
outweigh the burdens as a matter of law. As to persons speaking other languages, the balancing test of a proper due process analysis would have to be applied when that case arose.
I would think, however, that due process requires notice in other well-known languages as well. Thus, when the State knows that a claimant speaks only Polish, Hungarian, Italian, Chinese, Portuguese, or another relatively common language, it should be required to give notice of appeal in that language.
I am aware that many generations of non-English speaking persons managed to survive in this country without such assistance. But the fact that they struggled is insufficient reason to require others to be penalized as well. Due process is an elastic concept, one that takes new form as our standards of fairness and compassion change with a changing society. Just as it would now be unthinkable for a judge to allow a pro se litigant to leave the courtroom without understanding his right to appeal and the time limit for action, so should it be incredible
[89 NJ Page 60]
that an unemployment benefits claimant should be allowed to leave the claims office without being helped to understand these rights.
I do not intend to imply any translation requirements for other English-language notices, e.g., legal notices in newspapers, notices of rule-making proceedings, or the innumerable other notices required by statute or constitutional mandate. All I address here is the right of a claimant or litigant to receive notice of information central to his or her claim or action.*fn13
Due process requires notice. When it is not given to English-speaking people, they can set aside the proceedings, even though, by some extra effort, they might have been able to obtain timely notice themselves. Notice is the birthright of all people in this country, not just those who are vigilant enough to make daily inquiry about the status of proceedings, or to seek independent explanation of otherwise incomprehensible forms. When the State knows the claimant or litigant does not understand English, the State has the obligation to provide notice that can be understood. The constitutional guarantees of non-English speaking persons cannot be left to the protection of hoped-for humanitarian acts. These guarantees are theirs by right, not by charity.
There are undoubtedly better, and preferable, means than litigation to achieve notice to non-English speaking people. Agencies could voluntarily provide it, the Legislature could
[89 NJ Page 61]
require it, or perhaps private agencies could facilitate it. Many things can be achieved without the aid of the courts. This State, as a result of increasing compassion and understanding, as well as, perhaps, the increasing political strength of Hispanic-Americans, is moving in the direction of providing such information in Spanish. That the practice will all some day be remedied, however, and by a process preferable to court order, is no answer to the claim of denial of constitutional right. The tradition of constitutional deprivation in these matters does not lend legitimacy to the practice. Today prisoners are freed by courts if their conditions of confinement amount to cruel and unusual punishment; those involuntarily confined to mental institutions are entitled to periodic hearings and minimal treatment. If our courts are capable of correcting such long-lasting substantive deprivations at enormous cost to the State there is no reason why the gross unfairness of the procedure used here cannot be corrected by courts responding to the clearest constitutional command: the notice that is the bedrock of due process. It poses no danger to our patriotism or our unity, or to the certainty that we will remain an English-speaking nation. It shows only that we are strong enough to give meaning to fundamental rights when they are possessed by non-English speaking people in our midst, and that we are confident enough about the future to admit that perhaps we may have been wrong in the past.
Some might think that the rule of the majority provides an incentive to learn English. No such incentive is needed, for every day of their lives provides Hispanic-Americans with innumerable, often devastating reminders of their disadvantaged position resulting from the language barrier they face. There is no carrot in this decision, only a stick.
I find that Zoila Alfonso should have been given notice of her right to appeal and the time limit for filing her appeal, and she was not. She was thereby denied due process of law by the State.
[89 NJ Page 62]
I therefore would reverse and remand the matter to the Division's Appeal Tribunal for a hearing on the merits.