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.
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
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
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
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 ...