DocketNumber： 19005, 19127, 19321, 19322 and 19346
Judges： Hall, Durham, Stewart, Oaks, Howe
Filed Date： 3/22/1984
Status： Precedential
Modified Date： 10/19/2024
(concurring and dissenting):
I concur in Parts II and IV of the majority opinion, but dissent from Part III and portions of Part I.
In Part III, the majority opinion holds that the procedures used to terminate appellants’ unemployment benefits do not violate due process rights under the Utah Constitution, the United States Constitution, or the Social Security Act, 42 U.S.C. § 503(a)(1) and (3). I believe that the majority is mistaken in its analysis on both questions and, further, I believe that a due process analysis under the Utah Constitution alone would be appropriate.
I
Regarding the question of compliance with the Social Security Act, the majority relies upon the federal promptness stan
15. The District Court interpreted our summary affirmance in Torres to indicate that benefits are not “due” under § 303 until administratively deemed payable. 364 F.Supp., at 930. While this is a plausible reading of the evolution and affirmance of Torres, it is not one that we can endorse. Such a definition of the “when due’’ requirement of federal law would leave little vitality to Java and would nullify the congressional intention of requiring prompt administrative provision of unemployment benefits. See 402 U.S., at 130-133 [91 S.Ct., at 1353-1355], By reading our summary affirmance in Torres at its broadest, the District Court heightened the tension between that judgment and our more considered disposition of Java. A narrower interpretation of Torres would have been appropriate.
Any statutory requirement that embodies notions of timeliness, accuracy, and administrative feasibility inevitably will generate fact-specific applications. In this instance, many of the factual distinctions that the District Court relied on to distinguish Torres on the constitutional issue apply equally to the “when due” question. For example, the delay in resolving administrative appeals is considerably greater in Connecticut than in the New York system, where administrative appeals were resolved in an average of 45 days. See Torres v. New York State Dept. of Labor, 321 F.Supp. 432, 439 (S.D.N.Y.1971). And, as the District Court observed, the Torres court apparently did not consider the probable accuracy of the challenged procedure in de*824 termining whether it adequately assured delivery of benefits “when due.” See 365 F.Supp., at 936. We do not undertake to identify the combination of factors that justify the Torres decision. Having once decided the case summarily, we decline to do so again. We only indicate that the District Court should not have felt precluded from undertaking a more precise analysis of the statutory issue than it felt empowered to do in this case.
It may be seen from this discussion that the question raised by appellants respecting the Social Security Act has not been definitively determined for all fact constellations by the U.S. Supreme Court.
The above limitations are equally applicable to the federal due process question. The majority opinion essentially avoids any analysis of that question, instead extrapolating from U.S. Supreme Court opinions what that Court’s position is. In discussing the import of Fusari v. Steinberg, supra, the majority adopts the interpretive view of the Indiana Supreme Court that “[i]f the Supreme Court was of the opinion that' a pretermination hearing was constitutionally required, they [sic] would not have remanded the Steinberg case for further consideration in light of revisions which did not even provide for such a hearing.”
I believe this conclusion is unwarranted and should not be adopted by this Court as dispositive of so important an issue. In his opinion in Steinberg, Justice Powell repeatedly states that it would be both difficult and inappropriate for the Supreme Court to decide the case in light of the amendments that were made to Connecticut law while the case was on appeal. “In these circumstances, we think it inappropriate to decide the issues tendered by the parties. We therefore vacate the decision of the District Court and remand for reconsideration in light of the intervening changes in Connecticut law.” Fusari v. Steinberg, 419 U.S. 379, 380, 95 S.Ct. 533, 535, 42 L.Ed.2d 521 (1975). “We are unable meaningfully to assess the issues in this appeal on the present record.” Id. at 387, 95 S.Ct. at 538. “[W]e can only speculate how the new system might operate. And, assuming that the federal statutory requirements were satisfied, it would prove equally difficult to assess the question of procedural due process.” Id. at 388-89, 95 S.Ct. at 539-40.
From this language it should be clear that the Supreme Court’s disposition in Steinberg does not decide the due process issue. Rather, that disposition only demonstrates the operation of the “principle of prudent restraint” explained by Justice Harlan in Sanks v. Georgia, 401 U.S. 144, 151, 91 S.Ct. 593, 597, 27 L.Ed.2d 741 (1971).
[I]t has always been a matter of fundamental principle with this Court, a principle dictated by our very institutional nature and constitutional obligations, that we exercise our powers of judicial review only as a matter of necessity. As said in United States v. Petrillo, 332 U.S. 1, 5 [67 S.Ct. 1538, 1540, 91 L.Ed. 1877] (1947), “We have consistently refrained from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a precise constitutional issue is a necessity.”
Had the revised Connecticut unemployment compensation procedures properly come before the Supreme Court on an appeal from the district court’s decision of the remanded case, the Supreme Court might very well have decided that only a preter-mination hearing would have satisfied due process requirements. Of course, we cannot know this; we can only speculate, since there is no analysis of that issue in the opinion. The point is that any position ascribed to the Supreme Court on the basis of this case is mere speculation. Speculation is no ground upon which to dispose of appellants’ important constitutional claims.
II
In view of the tenuous and unclear state of the federal law on both the statutory and federal due process claims, I do not believe that we should even treat the feder
Article I, section 7 of the Utah Constitution states that “[n]o person shall be deprived of life, liberty or property, without due process of law.” As we noted in Untermyer v. State Tax Commission, 102 Utah 214, 222-23, 129 P.2d 881, 885 (1942), this due process clause is substantially similar to that of the Fifth and Fourteenth amendments to the federal Constitution. In Untermyer we stated that “[decisions of the Supreme Court of the United States on the due process clauses of the Federal Constitution are ‘highly persuasive’ as to the application of that clause of our state constitution.” Id. Yet decisions of the Supreme Court are not dispositive of our interpretation of our own state constitution. This Court retains the power to independently interpret the due process clause of the Utah Constitution.
Such an independent analysis is required by this case. The United States Supreme Court has not spoken with a clear voice on this question. To follow the Supreme Court in this matter would require an interpretation of the “precise precedential significance of a series of rather bewildering summary dispositions of factually related suits by the Supreme Court.” Steinberg v. Fusari, 364 F.Supp. 922, 924 (D.Conn.1973) (footnote omitted). The Supreme Court’s remand of Steinberg, as I have indicated, provides no finality of interpretation.
In its analysis, this Court should treat the state constitutional issue before considering the federal question for at least three reasons. First, this approach would permit us to avoid treating the federal question at all if we are able to dispose of this case in favor of appellants on solely state constitutional grounds. See American Federation of Labor v. California Employment Development Department, 88 Cal.App.3d 811, 821, 152 Cal.Rptr. 193, 199 (1979). This is an especially prudent course in a case such as this where there is no clear interpretation of the federal issues by the Supreme Court.
Second, we should treat the state constitutional ground first because such a practice will result in a more principled and directed analysis of the facts contained in the case before us. As the majority opinion amply demonstrates, the analysis of the appellants’ due process claims has been reduced to an attempt to divine what the Supreme Court “must have meant” by its various procedural dispositions. Very little attention has been paid to deciding whether the specific facts of the appellants’ situations denied these individuals due process of law. The majority does not state, and I cannot find, any prior decisions of this Court that determine that the appellants’ state right to due process is satisfied by a post-termination hearing for the termination of unemployment benefits. The issue is thus one of first impression in this jurisdiction and requires analysis.
Finally, treating the state constitutional grounds first would further the development of a distinguishable body of state constitutional law. The due process clause of the Utah Constitution should not serve merely as a reminder to search the volumes of the United States reports. It provides the people of this state with protections that may be greater in some instances than
A.
A common theme of this Court’s due process cases is that due process “hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.” Riggins, et al. v. District Court of Salt Lake City, et al., 89 Utah 183, 217, 51 P.2d 645, 660 (1935); Christiansen v. Harris, 109 Utah 1, 7, 163 P.2d 314, 316 (1945) (Wade, McDonough and Wolfe, J.J., concurring in the result). In Christiansen, this Court stated that due process did not necessarily require judicial action and that its requirements could be met, in proper cases, by executive or administrative action.
But all these methods and means provided for the protection and enforcement of human rights have the same basic requirements — that no party can be affected by such action, until his legal rights have been the subject of an inquiry by a person or body authorized by law to de- - termine such rights, of which inquiry the party has due notice, and at which he had an opportunity to be heard and to give evidence as to his rights or defenses.
Id. at 7, 163 P.2d at 317.
This Court has never followed a hard and fast rule that a hearing must always be provided before one may be deprived of any property interest of whatever magnitude. But in those cases where it has considered and approved a post-termination proceeding, this Court has demonstrated a consistent concern for the degree of injury that might result from a procedure allowing for only a subsequent hearing.
In Thatcher v. Industrial Commission, 115 Utah 568, 207 P.2d 178 (1949) (Pratt, C.J., dissenting), this Court considered a claim that the Industrial Commission denied appellant attorneys due process of law by ignoring their request for a hearing to determine what would be a reasonable fee for services performed. This Court concluded:
Many times when the work done is not great and the compensation to be allowed is comparatively small, the commission may fix the fee without first granting a hearing .... Economy of time and effort to all concerned in those cases makes it practical for the commission to fix a fee from its experience in compensation cases without hearing as to the value of the services performed. But if the attorneys or the applicant ask [sic] for a hearing on the matter ... before the fee is fixed ... the same should be granted in order to satisfy the requirements of due process.
Id. at 578, 207 P.2d at 183.
In Rupp v. Grantsville City, Utah, 610 P.2d 338 (1980), the appellants were residents of Grantsville who refused to pay a $300 mandatory connection fee to the municipal sewer system. Pursuant to a city ordinance, water service to the appellants was cut off until they paid their fees. Appellants argued that the termination of their water service because of their failure to pay the mandatory connection fee was an unconstitutional deprivation of property without due process of law. This Court stated that “the demands of due process rest on the concept of basic fairness of procedure and demand a procedure appropriate to the case and just to the parties involved.” Id. at 341 (footnote omitted). This Court held a post-termination hearing to be sufficient in this situation on two grounds. First, there was no question of fact requiring resolution at a hearing prior to termination of the water service. This Court was not faced with “a situation where a bona fide dispute exists concerning the amount due or the liability of the plaintiff for payment.” Id. n. 9 (citation omitted) (emphasis added). The only question was the legality of the ordinance. Id. at 341. Second, a statutory procedure for paying under protest existed, and the municipality accepted various payment
Most recently, this Court considered the case of an employer who appealed the Industrial Commission Board of Review’s decision that increased its unemployment compensation contribution rate for failure to file a timely quarterly report and payment. The employer contended that it was denied due process of law when its contribution rate was raised without a prior hearing. It was noted that because the increased contribution rate was still being contested, the employer had not yet paid the Commission any of the increased rate. This Court held that the imposition of the increased contribution rate by the Commission did not violate the employer’s due process rights because it had an adequate subsequent opportunity to be heard “and because it has not been injured by the assessment of the increased rate prior to an evidentiary hearing.” Vali Convalescent & Care Institution v. Industrial Commission, Utah, 649 P.2d 33, 36 (1982) (emphasis added).
The past opinions of this Court show the magnitude of injury to the private interest to be of paramount, though not exclusive, importance. In interpreting our state’s due process clause, we must review the whole procedure to determine whether it is “appropriate to the case and just to the parties involved,” Rupp, supra, at 341, but we should give special weight to the magnitude of deprivation that results from the questioned procedure.
B.
The public policy of this state, as declared by our Legislature, speaks clearly of the devastating impact of unemployment:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Unemployment ... requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this great hazard of our economic life.
U.C.A., 1953, § 35-4-2.
The strong language of this statute cannot be ignored. I cannot see how such a “serious menace” is averted or the “crushing force” of its burden alleviated by the interruption of unemployment benefits to those who are eligible to receive them. The precarious financial situation of most people who are eligible for such benefits almost insures that the purposes of the Utah Employment Security Act will not be met upon the interruption of payments. The record, for example, shows that upon interruption of her benefits appellant Payo-telis became unable to pay her utility bill, had difficulty making her house payments, had sold several household appliances to raise cash and had been forced to borrow money from her daughter. Moreover, a vicious cycle is perpetuated in these cases as claimants whose benefits are terminated because they have not made the required number of in-person inquiries subsequently find it yet more difficult to pay for their transportation to meet the in-person requirement in the future. I think the facts show that the same legislative concern that dictates the provision of unemployment benefits dictates also their uninterrupted provision to those eligible to receive them. Cf. Goldberg v. Kelly, 397 U.S. 254, 265, 90 S.Ct. 1011, 1019, 25 L.Ed.2d 287 (1970).
Uninterrupted benefits to eligible recipients can only be guaranteed by pretermination hearings because of the potential complexity of the factual issues involved. Royer v. State Department of Employment Security, 118 N.H. 673, 394 A.2d 828, 832 (1978). Obviously, the situation we are faced with today is unlike the one we faced in Rupp, where we held that no pretermin-ation hearing was required, partly because no question of fact was in issue. Rupp, supra, at 341. Rather, the interview procedure by which the Department of Employment Security made its initial decision to terminate appellants’ benefits does not af
Appellants were denied benefits as a result of their attending an interview and submitting a list of their contacts. This procedure is defective because the decision appears to be based on the written list appellants submit, which procedure is without adequate safeguards against misunderstandings, omissions or inaccurate submissions.
Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance.
Goldberg, supra, 397 U.S. at 269, 90 S.Ct. at 1021. Accord Mathews v. Eldridge, 424 U.S. 319, 344-45, 96 S.Ct. 893, 907-08, 47 L.Ed.2d 18 (1976). This problem is illustrated by the record here. The form provided by the Department did not contain enough spaces for appellant Payotelis to list all of her contacts, and the supplemental list she attached to the form was lost by the Department. Appellant Gray, misconstruing the purpose of the procedure, listed only what he thought were his “best” contacts.
My belief in the inadequacy of the submission of written lists is closely related to the additional defect created by the Department’s failure to give the appellants an opportunity to be represented by counsel before the decision to terminate their benefits was made.
Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient.
Goldberg, supra, 397 U.S. at 270-71, 90 S.Ct. at 1021-22. The presence of counsel would not only have cleared up the confusion several of the appellants experienced at their interviews, but it would also enable the appellants to be advised before they signed the “statements” that were prepared for them by the Department.
Additionally, I question whether the appellants ever received adequate notice that their benefits could be terminated as a result of the interviews. Such notice appears to have been provided them only at the end of the interviews, after all of the substantive part of the exchange was completed.
I would follow the guidelines set forth in the opinion of the Supreme Court in Goldberg, supra, at 266-71, 90 S.Ct. at 1019-22, regarding the outlines of an adequate pre-termination hearing. The recipient should have “timely and adequate notice detailing the reasons for a proposed termination.” Id. at 267-68, 90 S.Ct. at 1020-21. The recipient should be allowed to state his position orally before an impartial decision-maker. The recipient should be given an opportunity to confront and cross-examine any witnesses relied on by the Department. Because of the informal nature of such a hearing and the accompanying relaxed rules of evidence, documentary evidence alone would in some instances be sufficient to support the termination of a recipient’s payments. The hearing would then afford the recipient an opportunity to explain the untruth or inaccuracy of such evidence. The recipient should be allowed to retain counsel, though counsel need not be provided for him. Finally, the “decisionmaker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing.” Id. at 271, 90 S.Ct. at 1022. Compliance with this last standard would require that the decisionmaker report why he reached his conclusion and what evidence he relied on, though this report need not amount to formal findings of fact and conclusions of law.
The hearings that were granted these appellants after the termination of their benefits appear to adequately meet the minimum standards of rudimentary due process I believe are required in a preter-mination hearing. The record that was kept of these hearings, in order to facilitate judicial review, would not necessarily be required in the pretermination stage. Nevertheless, because a full hearing with a record would be required at some point in a
Any increase in administrative costs that might result from holding hearings before terminating benefits is outweighed by the eligible claimant’s need to receive prompt and consistent payment of benefits. The loss to the Department of sums paid to ineligible recipients can be greatly reduced by a prompt system of hearings. Furthermore, the loss may be greatly tempered in many instances through recovery of over-payments by set-off against future benefits. See Royer, supra, 394 A.2d at 832. In any case, “the potential abuse by some of procedures designed to protect all ... cannot be the basis for deciding whether the procedures are required by due process.” American Federation, supra, 88 Cal.App.3d at 821, 152 Cal.Rptr. at 199.
I would hold that the due process clause of the Utah Constitution requires that a hearing be afforded a claimant before his unemployment benefits can be terminated. I would thus have this Court join the courts of California and New Hampshire, which have held the same based on their state constitutions. American Federation, supra; Royer, supra. Because I would decide this case under the Utah Constitution, I would not reach the question of whether the due process clause of the United States Constitution has been violated.
Ill
I also dissent from the majority’s conclusion in Part I that the Department subjectively applied the in-person contact requirement in the ease of Agnes Payotelis.
Appellant Agnes Payotelis is a forty-nine-year-old woman who has most recently worked as a pest control exterminator, a technical position licensed by the Department of Agriculture. She worked at her last job for three years before being laid off on July 31, 1982. Prior to her last job, she had worked at another exterminator company. Before then she had also had experience as a seamstress. Until she was laid off, Ms. Payotelis had not drawn unemployment benefits for twenty years.
At the appellant’s hearing before the appeals referee, her counsel cogently attacked the two-to-three new in-person contact rule as applied to Ms. Payotelis’ situation. Testimony showed that within the Salt Lake metropolitan area there are only about 12 exterminator companies. If one includes those’ areas more than a reasonable distance from Ms. Payotelis’ residence, the number is not greatly increased. Ms. Payotelis was therefore limited in the number of employers she could contact who would qualify as employers who would hire someone in her “occupational field.” Moreover, a diligent job search would rapidly exhaust the number of qualified “new” contacts Ms. Payotelis would have to make to meet the requirement of the rule.
Ms. Payotelis did contact every exterminator in the area. Because of her knowledge of the business and because of her own experience in being laid off, she knew that most would probably not be hiring. Nevertheless, she contacted every company. Instead of wasting gasoline by inquiring in person at every company, she called first and personally visited only those that allowed her to fill out an application. She furthermore kept in contact with all of the companies to determine whether any of their hiring situations had changed.
Ms. Payotelis’ strategy was recommended to her not only by its eminent good sense, but also by her precarious financial situation. Since being laid off, Ms. Payo-telis’ only source of income has been her unemployment compensation. She must make a $125 monthly payment on her mobile home. At the time of her hearing, she had been unable to pay her gas utility bill, had sold several household appliances to raise cash and had been forced to borrow gas money from her daughter so as to be able to attend her hearing. It seems entirely reasonable that one in such an extreme position would not senselessly waste any portion of her meager resources on a series of futile personal visits.
I would overrule the Department’s decision denying benefits from October 3, 1982, through October 23, 1982, and eliminate the resulting assessment of an overpayment. There may be some special merit to an in-person contact as opposed to a phone call, and I do not question the expertise of the Department of Employment Security in this respect. However, it does appear from the facts of this case that Ms. Payotelis, based on her experience in the business, intelligently and prudently conserved her resources by calling ahead to discover whether a personal visit would prove worthwhile. I can see little sense in refusing to allow the use of the telephone in those cases where it is appropriate and instead requiring people of limited means to knowingly waste their last dollars on certainly futile personal contacts. If the Department has some reason for requiring this, it should state it in the context of these facts. The opinion of the appeals referee is a mechanical application of a requirement that in this case has been shown to be irrelevant and futile. I would reverse.
. In several of these cases, benefits were actually terminated retroactively to dates considerably earlier than the notice. Since the claimants had already received past benefits, however, that additional time should probably not be included in the period they are considered to be without unemployment compensation income.
. While the appellants do not rely specifically on art. I, § 7 of the Utah Constitution, we may legitimately read their general due process challenge as broad enough to encompass it particularly since the status of the federal interpretation of the federal due process clause is ambiguous and uncertain. Although we may of course interpret federal law on our own where the U.S. Supreme Court has not ruled, it is more logical and appropriate for us to look first to Utah’s constitutional guarantees.