Alfonso v. Board of Review, Dept. of Labor and Industry

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtCLIFFORD; WILENTZ; PASHMAN
Citation444 A.2d 1075,89 N.J. 41
Decision Date26 April 1982
PartiesZoila ALFONSO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, State of New Jersey, Respondent.

Page 41

89 N.J. 41
444 A.2d 1075
Zoila ALFONSO, Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, State of
New Jersey, Respondent.
Supreme Court of New Jersey.
Argued Oct. 19, 1981.
Decided April 26, 1982.

Page 42

Jose E. Pardo, II, West New York, for appellant (Patricia A. Thornton, Executive Director, Essex-Newark Legal Services, Daly City, attorney).

Michael S. Bokar, Deputy Atty. Gen., for respondent (James R. Zazzali, Atty. Gen., attorney).

The opinion of the Court was delivered by

CLIFFORD, J.

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

Page 43

had received it. 1 On that day, with the aid [444 A.2d 1076] 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, 423 A.2d 1006 (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

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, 335 A.2d 545 (1975); Feuchtbaum v. Constantini, 59 N.J. 167, 175, 280 A.2d 161 (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.

[444 A.2d 1077] 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

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.

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. 2 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 [444 A.2d 1078] 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.

Affirmed.

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...

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11 practice notes
  • Vialez v. New York City Housing Authority, No. 89 Civ. 8356 (DNE) (SEG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Junio 1991
    ...individual served in this country with a notice in English does not violate any principle of due process."); Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1077, appeal dismissed and cert. denied, 459 U.S. 806, 103 S.Ct. 30, 74 L.Ed.2d 45 (1982) ("The courts have recognized, whether......
  • Yniguez v. Arizonans for Official English, Nos. 92-17087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Octubre 1995
    ...this "verbal cacophony is ... not a sign of weakness but of strength." Id. at 25, 91 S.Ct. at 1788; see also Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1085 (Wilentz, C.J. dissenting) (arguing that notice should be given in the language of the claimant and stating that to do so ......
  • Yniguez v. Arizonans for Official English, Nos. 92-17087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Enero 1995
    ...this "verbal cacophony is ... not a sign of weakness but of strength." Id. at 25, 91 S.Ct. at 1788; see also Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1085 (Wilentz, C.J. dissenting) (arguing that notice should be given in the language of the claimant and stating that to do so ......
  • Rodriguez v. Berryhill, Civ. No. 17-6884-KM
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 Marzo 2019
    ...of diligence and further inquiry on the part of a non-English-speaking individual served in this country."); see Alfonso v. Bd. of Review, 89 N.J. 41, 444 A.2d 1075, 1077, appeal dismissed, 459 U.S. 806 (1982) ("The courts have recognized, whether explicitly or implicitly, that in an Englis......
  • Request a trial to view additional results
11 cases
  • Vialez v. New York City Housing Authority, No. 89 Civ. 8356 (DNE) (SEG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Junio 1991
    ...individual served in this country with a notice in English does not violate any principle of due process."); Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1077, appeal dismissed and cert. denied, 459 U.S. 806, 103 S.Ct. 30, 74 L.Ed.2d 45 (1982) ("The courts have recognized, whether......
  • Yniguez v. Arizonans for Official English, Nos. 92-17087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Octubre 1995
    ...this "verbal cacophony is ... not a sign of weakness but of strength." Id. at 25, 91 S.Ct. at 1788; see also Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1085 (Wilentz, C.J. dissenting) (arguing that notice should be given in the language of the claimant and stating that to do so ......
  • Yniguez v. Arizonans for Official English, Nos. 92-17087
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Enero 1995
    ...this "verbal cacophony is ... not a sign of weakness but of strength." Id. at 25, 91 S.Ct. at 1788; see also Alfonso v. Board of Review, 89 N.J. 41, 444 A.2d 1075, 1085 (Wilentz, C.J. dissenting) (arguing that notice should be given in the language of the claimant and stating that to do so ......
  • Rodriguez v. Berryhill, Civ. No. 17-6884-KM
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 Marzo 2019
    ...of diligence and further inquiry on the part of a non-English-speaking individual served in this country."); see Alfonso v. Bd. of Review, 89 N.J. 41, 444 A.2d 1075, 1077, appeal dismissed, 459 U.S. 806 (1982) ("The courts have recognized, whether explicitly or implicitly, that in an Englis......
  • Request a trial to view additional results

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