Gray v. Department of Employment Security

GRAY, Plaintiff, A. Gordon

v. EMPLOYMENT

DEPARTMENT OF

SECURITY, Defendant. PAYOTELIS, Plaintiff,

Agnes

v.

DEPARTMENT OF EMPLOYMENT

SECURITY, Defendant. ALVARADO, Plaintiff, L.

Cathleen

v.

DEPARTMENT OF EMPLOYMENT

SECURITY, Defendant. CHYTRAUS, Plaintiff, E.

Steve

v.

DEPARTMENT OF EMPLOYMENT

SECURITY, Defendant. SCHOEN, Plaintiff,

Mary A.

DEPARTMENT OF EMPLOYMENT

SECURITY, Defendant. 19005, 19127, 19321,

Nos.

and 19346.

Supreme Court of Utah.

March

The factual scheme common to each of losing these cases is as follows. After jobs, appellants applied Depart- (hereinafter Employment Security “department”) unemployment compen- sation At the time filed benefits. benefits, they for in- their claims were orally department personnel structed alia, must, inter they make a deter- that (i.e., three) mined number either two or in-person potential employers contacts with eligibility in retain their each week order to received written in- They status. further responsi- time as to their structions that receiving relative to benefits. On bilities form, they claim for certified benefits I following: “I that understand personally seek work and be able must accept full-time work. I and available to Unemployment received the Insurance explaining my rights and Claimant Guide added.) (Emphasis responsibilities.” (herein- Unemployment Insurance Guide Guide”) after “Claimant contains the fol- lowing regard: in this “Make instructions An an active effort to look for work. ac- you that should contact tive effort means employers person in each week several people your occupational in who would hire added.) Appellants (Emphasis field.” also copies signed and received of a form enti- Claiming Bene- “Responsibilities tled While fits,” provides: must make an active effort Seek work —I for full time work each week to look up any job on leads I am will follow effort, given by Service. An active Job personally contact part, means will my employers people who would hire Black, Jr., Services, Legal John L. Utah occupation. Failure to do so be City, plaintiffs. Lake for Salt that I do not have considered as evidence genuine desire to find immediate em- Astin, Zabel, Floyd Sp. G. K. Allan Asst. ployment. Gen., Attys. City, Lake for defendant. Salt receiving After benefits for several

HALL, Chief Justice: months, appellants by mail were notified unemployment compensation were scheduled to be interviewed These five cases, re- having sepa- department purpose for the come to this Court as viewing eligibility Included appeals, rate involve similar factual circum- status. legal “Eligibility notice was an Re- stances and identical issues and are with this alia, required the form, which, inter in the interest of view” therefore consolidated contacts, report person judicial economy. claimant to otherwise, (1) good he appellant had made to secure em- Did act faith ployment during previous 30-day peri- make an active reasonable effort also following od. The form contained the employment? secure type: statement in “Please com- boldface new, (2) Is the “2 to 3 contact plete accurately. eligibili- this form Your legal a valid rule” standard? and ty insurance mil be (3) Does re- the Fourteenth Amendment part you based in on the information Bring you quire recipients unemploy- of Utah provide. this form when you your report (Emphasis compensation interview.” afforded added.) Goldberg hearing prior being v. Kelly2 deprived of such benefits? interviews, appellants

At their signed Regarding Claims For “Statement issues, In addition appellant to these Benefits,” acknowledged wherein each that Gray raises a regarding (as during certain weeks his work search priety department’s of the order that form) reported on the review did overpayment by of benefits be offset de- (i.e., not satisfy in-per- the standard several payable ductions from future benefits to week) son per contacts that had been set at him. the time initial claim was filed. only days eligi- Within their few after 1. GOOD FAITH EFFORT TO SECURE interviews, bility appellants “Eligi- received EMPLOYMENT bility Overpayment Determination and No- department, indicating from the Appellants tice[s]” contend that notwith that their were benefits sus- standing satisfy their depart failure to pended and that were liable to the three-new-in-person-contact ment’s two- to department certain for benefits received. requirement, they carried their burden given reason these for the notices establishing requisite “availability for denial of apellants benefits was that had “good conducting work” faith” search “availability failed to establish their employment. This contention rests pursuant work” Em- dictates of the upon analysis following provi of the ployment Security Act.1 Employment Security sion Act: Appellants appealed depart- the adverse unemployed An to eligible individual is decisions, first to an appeals referee respect any receive benefits with to week and then to the Board of Review of the only if it has been found the commis- Industrial Commission. level On each that: sion appeal, appellants certain of the received relief, partial but none received total relief. (c) good He ... acted in in an Appellants pur- are now before this Court faith § active to U.C.A., 1953, 35-4-10, secure suant to request- effort employment....3 ing further relief from the decisions of the board of review. added.) (Emphasis They point out that this

The following provision requires issues are “subjective” raised each analysis appellants: and, further, the claimant’s acts4 that it U.C.A., 1953, 35-4-4(c), 1.Specifically, (Emphasis added.) § which provides pertinent part: 2. 397 U.S. 90 S.Ct. 25 L.Ed.2d 287 eligible unemployed An individual is to re- (1970). respect any only ceive with to week if it has been found the commission that: U.C.A., 1953, 35-4-4(c). § (c) He is able work and is available for Wiesley, during See Gocke v. every work spect 18 Utah 2d each and 420 P.2d week re- (1966); Review, Utah, Denby he which made a claim Board for benefits under P.2d 626 this act .... cite, however, liberally5 They prece- and adminis- one such is to be construed purposes effectuate the state, tered to dent from this the case of Gocke v. standard, appel- the basis of this Act.6 On case, Wiesley.11 that the claimant’s that their efforts to secure lants maintain period work search over a 2-month consist- were employment sufficient to establish inquiries ed of to her former employer, requisite “availability (eligi- for work” calls, telephone several two con- bility). replies newspaper tacts and written box Appellants in-per- further assert that the advertisements. The Court reversed the requirement imposed by son-contact the de- commission’s denial of benefits to the partment eligibil- establishes a standard for claimant, reasoning as follows: faith, ity “good is inconsistent with nothing There is in the Referee’s find- subjective” required by the Act standard ings support will inference (§ 35-4-4(c)). suggest in- They legitimate that she did not make a at- rigid person-contact standard is and inflexi- tempt to obtain work. Based her ble, requiring “objective” rather thus apparent record, clean work it rea- seems analysis “subjective” than of the claimant’s sonable and natural that she should look work search efforts. to her employer former in the first in- scope of review of Industrial Our re-employment. stance for When that according decisions varies Commission materialize, expectation plain- did not the nature of the issues involved. This reasonably tiff acted in seeking employ- (and well) first issue the second issue as by personal application, ment elsewhere question presents a of “mixed law and telephone responses calls and written fact,”7 question.8 as well as a “technical” newspaper advertisements. These af- appropriate scope ques of of review firmative acts are all in the record and requires tions of this nature that we afford findings the Referee’s own of fact. Such deference to the commission’s “informed efforts constitute a reasonable effort on discretion”9 and that we sustain the com part her to obtain work.12 long mission’s decision so as it with “fall[s] in the limits of reasonableness or rationali The fact that the claimant in Gocke was 10 ty.” eligible considered for benefits without having weekly in-person made contacts is

Appellants argue position that their on dispositive in-person- not at all here. The supported by judicial precedent this issue is many jurisdictions. requirement this as well as other contact was not at issue in Singer Sewing long experience dealing 5. See Machine Co. v. Industrial with numerous simi- 175, Comm’n, (1943), added.) problems." (Emphasis ques- 104 Utah 134 P.2d 479 lar denied, 196, (1943). reh'g job 104 Utah P.2d adequate 141 694 to whether an tion as search in a particular profession has been conducted one purposes Employment Security 6. The of the Act expertise.” that calls for the “exercise of Inas- lightening unemploy- include the burdens of department "long experi- as the had much has maintaining purchasing power ment and in the dealing unemployed ence in with numerous” economy. See Johnson v. Board Review many professions assisting individuals in and in Comm'n, 113, 2d P.2d Industrial 7 Utah 320 315 becoming re-employed, them in we consider it U.C.A., 1953, (1958); § 35-4-2. qualified to be most to make the determination "availability for work.” See also SEC v. questions 7. "Mixed of law and fact” have been Chenery Corp., 332 U.S. 67 S.Ct. 91 findings 'application’ described as "the (1947). L.Ed. 1995 {e.g., happened) legal basic facts what to the governing Dep’t rules the case." Utah Admin. 9. Id. Comm’n, Utah, v. Servs. Pub. Serv. 658 P.2d 610 Supra 10. n. 7. City Corp. Department 8. In Salt Lake Em- Supra n. 4. Sec., Utah, (1982), ployment P.2d question a technical was described as one Comm'n, expertise, supra "which the exercise born Gocke v. Industrial n. califs] for background training either a technical P.2d at 47. separately regard to nor was it even mentioned. More- ine each this Gocke over, issue. there is no evidence before this Court disputed requirement indicate that the 1. Payotelis time even existence at the Gocke was support Upon only reviewing agency’s decided. The Gocke deci

was case, particular in this find no appellants’ argument is with re- sions lends rigid whatsoever of evidence or inflexible subjective to the of the stan- spect nature application in-person-contact require determining eligibility. point This dard contrary, To the ment. we find however, Thus, is, dispute. not in we con- department and gave the commission has no direct clude that the Gocke decision to the consideration claimant’s circumstanc bearing upon of whether the and, warranted, es where made substantial proper is a in-person-contact in their modifications decisions to reflect determining adequacy measure circumstances. those search. job eligibility interview, At her claimant re- Appellants also cite several decisions ported during previous 30-day peri- jurisdictions other from wherein claim- in-person od she had made con- two ant’s to receive benefits was es- eight or telephone tacts and nine contacts on tablished the basis of a work search potential employers. On the basis of much effort like that described report, suspended, her benefits were decision, supra.13 but one of Gocke All overpayment against and an was assessed decisions, however, distinguisha- those are her in amount of (representing $536 Gocke, i.e., grounds ble the same as she wrongfully had received dur- do not in-person-contact involve an period beginning the 4-week October requirement. In the one ease that does ending 30). Subsequently, October requirement, a similar involve Hill v. Dis- claimant tendered to appeals referee a n Compensation Unemployment trict supplemental list of and tele- Board,14 the rejection court’s of the re- phone alleged given contacts that she appears quirement grounded upon to be its department review, at her eligibility rigid application.15 and inflexible apparently but was lost or overlooked department. the upon supple- Based specific The before us at this information, mental appeals the referee point applied is whether agency the the decision, the finding modified claimant ine- requisite “subjective” ap- test determine to ligible receive during to 3-week a pellants’ eligibility. specifically, More we review, period prior to the eligibility rather agency ap- must determine whether the period, reducing than a 4-week thus the plied in-person-contact requirement the in overpayment assessment to $402. “subjective” statutory accordance the questions readily standard. These can We note following further the conclusion (De- examining agency’s appeals determined respect ap- referee with pellant Payotelis’ partment Employment Security during and In- claim for benefits Commission) period subsequent light dustrial decisions. October 30: the differences in the decisions and circum- It ap- claimant’s contention on cases, stances of these peal five we must exam- that she had suspend her work Administration, Employment court, Board 13. opinion, In footnote 4 of the Hill 15. 267, Smith, Appeals v. 282 Md. 383 A.2d 1108 rejecting three-contacts-per-week require- of (Md.App.1978); Mills, Rolling Cascade Steel Inc. imposed claimant, emphasized Div., 863, Employment Or.App. v. 26 554 P.2d applied fact had been (1976); Div., Employment 549 which, Bloomfield precedent," the form "condition Or.App. (1976); P.2d Hill v. Dis- conclude, rigid constitutes a and inflexible Board, Unemployment Compensation trict standard. (D.C.App.1973). A.2d 226 Supra n. 13. 14. in-person numerous tele- one contact but had no late as she November

search phone forced to contacts. gas and had been money belongings in order to number of sell a had a financially as she been survive Chytraus 3. of weeks without number case, primary dispute In this any other compensation or insurance claimant’s notice and under involved the However, as the of income. source in-person-contact require standing of the in-person supplemented her one claimant contended that he was not ment. Claimant calls, telephone by only “a few” contact oral' instructions to make two to given demonstrate a continu- she has failed to each in-person three contacts week market be- ing to the labor attachment interpret the written in that he did 27, 1982. yond November regarding “personal contacts” to structions subjective evidences

This conclusion in-person contact” mean “more-than-one require- in-person-contact plication of per week. willingness on the It indicates ment. 30-day report period for the Claimant’s require- department to bend part of the ending beginning December extenuating circum- or ment under unusual January included con- that the claimant on the condition stances during one the week end- tacts as follows: to the labor genuine attachment manifest a 1; January during none the week end- ing means. by other sufficient market 8; January during ending the week ing two Gray 15; during ending January none the week pre 22; agency’s January during and the one the week end- decisions report are indicated cipitating ing January circumstances this case 29. The also Payotelis. Again, had mailed on Janu- very similar to those that one resume been nothing suggest rigid was considered inade- objec ary we find This search in-person-contact except re for the application quate by department, tive ending January in-per- 15 when two quirement. week made, and claimant was contacts were son department suspended Gray’s bene- overpayment. At the hear- a $417 assessed overpayment of $498 fits and assessed an referee, appeals claimant before report his against him on the basis of information relative to submitted additional contacts, employer three new he made December he his work search: on otherwise, prior days in the 30 in-person or January application, and on mailed depart- to his review with through department refer- he followed on a Thereafter, subsequent on levels of ment. Notwithstanding, appeals referee ral. appeal claimant submitted lists of addition- department’s decision. affirmed the during purportedly he had made al contacts question, 30-day period originally as appellant Chytraus’ claim Concerning period that followed. Further- well as the under- he did not receive notice of or claimed, more, appel- appellant Gray as did in-person-contact requirement, stand the he unable to con- Payotelis, lant was appeals referee concluded: in-person due to his making tinue contacts provided the claimant The information desperate financial situation. effort he must make an active states contacting by several em- circumstances were ana- secure work That claimant’s in-person- ployers person each week. While lyzed subjectively and that the specifically he must make applied in a flexi- does not state eontact was three contacts each by the a minimum of two to ble manner are evidenced board contact modify depart- week it is difficult to see how one review’s decision to day as period in a six could be construed decision to the extent that benefits ment’s covering employ- an active search several particular for a week which be allowed ers_ claimant, stress, only mini- only claimant made under financial made [T]he mal it during efforts and is considered the de- lar week which she made three partment’s in-person resume and denial was in order. searches no contacts. interpret We do not this conclusion to be 5. Alvarado rigid application and inflexible The denial of this case was in-person-contact requirement. There were only by occasioned not the claimant’s fail- pled justify no circumstances here to satisfy in-person-contact require- ure to claimant’s minimal efforts. The referee ment, by but her failure to show sufficient clearly analysis based his decision on an kind, any in-person otherwise, efforts of determined, all the circumstances and as he employment. to secure have, should that claimant’s efforts and inadequate. excuses were Appellant Alvarado’s benefits were sus-

pended overpayment and an in the amount against was assessed $164 her on the Schoen report basis of her that during a 2-week agency That the considered the cir period her search for work consisted aof surrounding cumstances claimant’s efforts single in-person contact. She further re- employment applied to secure the in- ported that the reason her efforts had been person-contact requirement subjective in a so minimal during period this 2-week manner in clearly adequate this case is repairs that her car needed and she had no ly findings illustrated in the and conclu transportation. other form of She did not appeals sions entered referee and (at at that eligibility interview) time adopted by the board of review: claim to have made other efforts FINDINGS OF FACT: in-person methods other than contacts to employment. secure ... The claimant testified that she subsequent At her before an was instructed an interviewer on or peals referee, appellant why was asked she about November 1982 to seek work transportation had not used bus to make through resumes sup- and cover letters requisite in-person contacts. She re- plemented personal interviews as plied that she money did not have the often as she could obtain them since this that, bus fares. She also testified notwith- type of search appropriate was more standing inability her to make experience someone with her and educa- during contacts the 2 question, weeks in tion. The claimant stated that the re- she did employment continue to seek sume method appropriate was the most through methods, other to wit: looked in seeking method of employment at her newspaper, talked with friends and expertise. level of may have made telephone several calls to potential employers. These additional ef- AND REASONING CONCLUSION OF not, however, forts were considered LAW: appeals sufficient, referee to be even under

the difficult (transportation) circumstances ... Given the instruction of the Form by appellant. described They were indefi- 601-D to make three each contacts week nite unspecific inadequate and thus coupled with the verbal active, instructions on good establish an faith search for appropriateness search, department’s resume work. The decision was it is held that the claimant will be al- therefore affirmed. any

lowed benefits for week in which she careful, This decision evidences a made three resume searches or a combi- subjective analysis of all the circumstances nation of person resume and in work (only factors one of which was the searches. in-person-contact requirement) surrounding On the basis of the foregoing, claimant the claimant’s search for work. We find was in fact awarded particu- benefits for a no evidence in the support appel- record to “scope In our lant’s contention that the sole basis for discussion on of review” City Corp. Department the claim- Salt Lake v. determination was Employment Security, supra, ac satisfy in-person-contact ant’s failure to we knowledged department’s authority to requirement. interpret Employment Security Act: foregoing, From the we conclude that [Wjhere language aof statute indi- in-person-contact requirement has been legislative cates a intention to commit plied in these five consolidated cases in a any broad discretion agency to effec- “subjective” manner consistent with the purposes legislative tuate the “good statutory faith” standard. Further- scheme, we judg- will not substitute our more, agency’s in deference to the “in- agency long as as matters, formed discretion” in these interpretation commission’s has subjective analysis conclude that its in each “warrant in the record" and a “reason- case was “within the limits of reasonable- Furthermore, able basis in the law.” rationality.” ness [and] agency where decisions deal with techni- questions cal which call for the exercise II. VALIDITY OF IN-PERSON-CON- expertise, born either of a technical REQUIREMENT TACT background training long experi- numerous, in dealing ence similar represents yet This second contention an- problems, we also accord deference challenge validity other to the of the de- agency interpretation an because of the partment’s in-person-eontact requirement. necessity recognize discretion com- Appellants requirement contend that the issue, mensurate with the nature of the applied void because at the time it was general purposes as defined properly these cases it had not been Act, although the latitude accorded mulgated agency pursuant as an rule vary with the nature of the issue. SEC Rule-making the Utah Administrative Chenery Corp., 332 U.S. 194 S.Ct. [67 Act, According Rule-making Act.16 to the (1947), provides 91 L.Ed. an 1995] prior adoption, to the repeal amendment or example. statutory language re- agency, agency rule a state quired that before the Commission could action, provide must notice of its intended give approval plan reorganization to a opportunity public an comment and a utility holding company, the Com- public hearing. The rule must then be required mission was to determine archivist, filed published with the state among things plan other ultimately department’s codified equitable.” “fair and 332 U.S. at 204 [67 Adjudication. Rules of at S.Ct. The standard of review 1581]. legal under such criteria was based on agency maintains that the in- to the discretion" was, person-contact at all deference “informed permitted the Commission and rever- hereto, pertinent nothing times more than of sal of the Commission’s ruling only upon and, such, interpretive guideline as did plain abuse of its discretion. Id. at 208 require promulgation formal under S.Ct. [67 1583].17 Rule-making agreement Act. We are agency’s (Citations omitted.) with the position for the interpretations reasons Such that follow. necessarily always do not rise to the level U.C.A., 1953, 63-46-1, seq. employment” § et It is to be active effort to secure if the claim- subsequent noted that specific administrative ad- ant fails to make a number of judication presently of the cases before us the employer being contacts after instructed to do Department Employment Security promul- by department personnel. so This rule does not gated three-new-in-person-contact a two- to rule affect the cases at bar. in accordance with Utah’s Administrative Rule- rule, making Act. The new which took effect on Supra n. at 1316. April presumption creates rebuttable "good that a claimant has not made a faith ... general must, instead,

of of have a applicability requiring legiti- rules of it. He formal to promulgation mate claim of entitlement it. It is a proceedings. Some purpose are the no more of ancient institution of guidelines than informal plied property protect to those claims subjectively implement agency people rely daily in their such, must statutory provisions. rules or As lives, that must not be arbitrari- reliance promulgation. formal require ly purpose undermined. It is a light In of our determination under the right constitutional a previous point appeal, i.e., that of this the opportunity person vide an for a to vindi- in-person-contact applied requirement was cate those claims.19 manner, subjective in a flexible that conclude said constitutes Although explicit- never held the Court has species agency interpretation the latter of encompasses ly that this definition unem- promul- and thus was valid without formal benefits, it ployment compensation has gation. In implicitly. Steinberg done so v. Fu- sari,20 a federal district court held that the A III. NECESSITY PRETERMINA- OF procedure by utilized the state of Connecti- TION HEARING determining a continuing cut claimant’s by appel- The third contention raised the unemployment to receive benefits suspension lants is the of their unem- process protections. violated due Infra. ployment pre- insurance a benefits without before, pending the was While case evidentiary hearing termination amounts to Supreme Court, legislature the Connecticut rights by a violation of secured to them disputed procedure. In light revised of due clauses of the States United revision, this case was remanded to the Constitution and the Constitution district court for reconsideration. In so State of Utah and the Social doing, the Court observed: § Act, 503(a)(1) (3). 42 U.S.C. & precise Identification dictates of process requires due consideration of prerequisites application governmental both function involved process protections (1) of due are: state private interests affected offi- (2) constitutionally protected action and a action_ context, possi- cial this liberty property interest.18 That state length deprivation ble wrongful present action here virtue an important application and enforcement of a Utah stat assessing impact factor in of official Act) (Employment Security undisput ute private action on the interests.21 prerequisite, appel ed. As to the latter expectation lants claim that the contin added; (Emphasis omitted.) citations unemployment compensation ued benefits We interpret the Court’s action Fu- is a “constitutionally protected property in sari, specifically the language quoted terest.” above, just interpreted therefrom as it was concept interests,” “property Supreme in by Virginia Court in very context, the “benefits” was defined similar case Virginia entitled Klimko v. United States Employment as follows: Commission:22 benefit, property To procedures have interest in a While sufficiency of the person clearly must have than an more was the before Court, abstract need or desire for it. He must language appears to be a have more than a unilateral expectation acknowledgment expecta- tacit 319, 379, 18. Mathews v. Eldridge, 389, Steinberg, 424 U.S. 96 S.Ct. 21.Fusari v. 419 U.S. 95 S.Ct. (1976). 533, 539, denied, 47 L.Ed.2d 18 reh'g 42 L.Ed.2d 420 U.S. (1975). 95 S.Ct. 43 L.Ed.2d 433 Roth, 564, 577, 19. Board Regents 408 U.S. (1972). 92 S.Ct. 33 L.Ed.2d 548 22.216 Va. 222 S.E.2d 559 (D.Conn.1973). 20. F.Supp.

817 § unemployment 503(a)(1) forth in (3). tion continued com- are set 42 U.S.C. & of pensation 503(a)(1)requires constitute Subsection that state un- property protection within the interest employment compensation provide laws procedural process guaran- due method of “reasonably administration cal- of Constitution,23 tees payment culated to insure full of unem- of added.) ployment compensation (Emphasis Virginia fur- when due.” The court Sub- 503(a)(3) “[Bjecause [Supreme] requires ther section further observed: state explicitly Court has never decided “[ojpportunity to insure hearing, a fair assume, question, shall we without decid- impartial tribunal, an before all individ- ing, expectation of un- continued uals unemployment whose claims for com- employment compensation pro- benefits is a pensation are denied.” 24 property tected We interest.” draw Appellants’ argument pretermina- that a assumption, deciding same also without hearing evidentiary tion is essential to sat- issue. appel- We therefore conclude that isfy statutory requirements these pur- is justified seeking lants are the constitu- portedly supported by the United States protections by procedural tional afforded Supreme decision, Court De- California process. due Java,26 partment Human Resources v. of applicability Security The of the Social Java, the initial administrative determi- aptly explained Act has been as follows: of eligibility nation the claimant’s to re- compensation unemployment The unemployment protested ceive benefits was gram jointly operated by the federal employer, appeal and an lodged. governments. and state States adminis- procedure, Pursuant to California program pursuant ter the to their own suspended pend- claimant’s benefits were unemployment compensation but laws ing the resolution the employer’s appeal. guidelines must to adhere federal in so proce- found that this doing. government provides The federal dure violated the “when due” clause of no pay substantive benefits does but § 503(a)(1)and held: administering entire program cost “When due” was intended mean to at the provided state conforms to the stage unemployment earliest that such requirements. federal 42 U.S.C. payments administratively were feasible § § 1101(c)(1); 503(a); 42 U.S.C. 26 giving after both worker and the § U.S.C. 3304.25 employer an opportunity be heard. Having procedural determined that both due and the Security Social Act

apply context, present compensation in the Paying now ... an must unem- identify precise specif- ployed promptly dictates. More worker an after initial ically, we must determine whether eligibility accomplishes determination of present system, which affords claimants congressional purposes avoiding post-termination evidentiary hearing, satis- stabilizing resort welfare and consum- fies statutory both the demands; er delaying compensation until requirements pretermination or whether a elapsed months have pur- defeats these necessary. poses. It seems clear therefore that the procedure, suspends California Security A. Social Act payments period for a median of seven specific requirements appeal, pending the Social weeks after initial present relevant inquiry Act determination has been 23. Labor, 25. Dunn v. New York State Id. 222 S.E.2d at Dep’t 474 (S.D.N.Y.1979). F.Supp. 272 See also U.C.A., 1953, l(k). § 35-4-1 Meystrik, F.Supp. Id. See also Graves v. (E.D.Mo.1977). 26. 402 U.S. S.Ct. L.Ed.2d

.818 Fusari, offer evidence infra), must in- v.

made, reasonably is not calculated department has failed to meet the payment com- full sure “Promptness due.27 mandated Stan- pensation federally when cases, In the we find no instant dards.” point pe- further out that Appellants evidence. such suspended their benefits were riod of time appeal either ex- administrative pending distinguishable is also The decision Java comparable to or at least ceeded was cases involve upon its facts. instant in by the Court period denounced 7-week following appeals administrative employee /am.28 Benefits were eligibility. determination of only ineligi- after suspended in these cases reliance Java appellants’ on the basis of bility of the Court’s deci- had been determined misplaced. The basis not, appellants purport, pro- as facts and circumstances disqualifying there was sion pro- not procedure did appellants (employees) the California them- that vided evidentiary hearing; pretermination hand, vide the other Java involved selves. On rather, period dur- that the median it was following appeal an adminis- employer an benefits were ing eligible claimants’ which Bene- eligibility. determination of trative of an em- suspended pending the outcome suspended case were automati- fits in that Nothing in appeal excessive.- ployer was filing appeal without cally upon the of said post-termina- opinion suggests that a that prior determination of administrative after hearing, promptly is held tion reasons, foregoing ineligibility.30 For the provides for suspension of benefits inapposite present to the issues. Java resolution, violative of prompt would be upon a Appellants place further reliance § 503(a)(1). court decision that was ren- federal district “prompt- of the standard of As a result subsequent to dered several months Java. Java, regula- in federal ness” articulated Vermont,31 the In v. State Wheeler reflect the neces- formulated to tions were system of administra- court held phases in all of the ad- sity for timeliness was employed tion the state Vermont process. These “Federal Stan- ministrative full “reasonably calculated to issue not (herein- Promptness” Appeals For dards compensation payment of Standards”) currently “Promptness after Act.) (Social Among when due.” require percent of all first-level 60 for this decision were those the reasons days appeal be rendered within 30 decisions by appellants, to wit: a here advocated percent of appeal the date of and that 80 be afforded pretermination must rendered appeal decisions be all first-level prior suspension of the claimant to the days appeal.29 within 45 benefits, lapse and the time between light regulations, In of these order appeal the date a decision as to date of prevail argument on their appellants to agency cannot eligibility is rendered lapse the date of that the time between be excessive.32 the decisions appeals and the date of decline to follow the We Wheeler excessive, merely they must not show was first is that decision for two reasons. The lapse equivalent to that that said time was requirement pretermination of a hear any other case that has held the Java comport Supreme Court (e.g., Steinberg does not with lapse time to be excessive Employment 30. See Wilson v. Board Ind. Sec. Id. 91 S.Ct. at 1355. 27. Div., 270 Ind. 385 N.E.2d 438 (at appeal lapse decision The time from level) appellate administrative each the first (D.Vt.1972). F.Supp. 31. 335 856 (1) cases was as follows: of these consolidated Payotelis, traus, (2) (3) Gray, days; Chy- days; 23 39 Wheeler, In the court held that the Vermont Schoen, (5) (4) days; days; days agency's average lapse time of 37.5 Alvarado, days. excessive. 650.4(b). § 29. 20 C.F.R. subject. Although on this tiff Dinger: decisions was the explicit High has never made facts, redetermination based on new but respect necessity with statement plaintiff supplied the insurance office pretermination hearing under the Se- Social very with those facts at an administra- Act, it has curity on several occasions done tive interview. This administrative Java, implicitly. example, implicit so redetermining cedure for that benefits i.e., statements, supra, Court’s fully not “due” comports were “promptly” must compensation be made § 503(a)(1) of 42 U.S.C. suspen- worker unemployed and that a (1970).34 (or sion of for “several months” opinion This second of the district court weeks) excessive, pay- is is the idea that Supreme was later resubmitted to the within a time of benefits reasonable summarily Court and was affirmed.35 suspension during and a of benefits a rea- following The second reason for not the period pending of time sonable administra- Wheeler decision on this issue is that it was would tive review be consistent with the prior decided to the promulgation of the dictates the Social Act. Appeals “Federal Standards for Prompt- Supreme indication Another the ness.” In determining whether approval post-termination Court’s appeal state’s administrative procedure is hearing procedure begins promptly that af- sufficiently prompt, we must that measure suspension provides ter a of benefits and procedure against “Promptness the Stan- prompt for a resolution is found Torres dards,” against than rather the 7-week Department v. New York State Labor.33 Java standard or the 37.5-day Wheeler level, reject- On the court district the court Thus, standard. we aspect find this arguments that procedur- ed the New York Wheeler decision irrelevant to the instant scheme, provided al post-termina- cases. here, tion similar to those at issue satisfy failed process above, to both due For the reasons stated hold § 503(a)(1) requirements. the While case post-termination evidentiary hear- Court, pending was before Supreme ing procedure employed by department decision was Java rendered. as Inasmuch fully comports these cases with interpreted § require- Java “when due” 503(a)(1). “when due” § 503(a)(1), ment of remanded Court the Torres decision for reconsideration B. Due Process light remand, On Java. the district requirements process, Of the due court position adhered its former on both has process, said: “Due statutory questions. constitutional and rules, legal unlike some is not a technical issue, respect With to the statutory it dis- conception with a fixed content unrelated tinguished upon Describing Java its facts. time, place and circumstances.”37 an identical almost factual procedural process is flexible such and calls for “[D]ue here, scheme as we have held: court procedural protections as particular sit- suspended were on the basis ' uation demands.”38 of new factual circumstances which

could not have Appellants pro been considered at the contend that the minimal original eligibility protection interview. The Java cedural pro demanded due plain- decision is therefore irrelevant cess in present pretermina context is a 968, 1685, 33. 402 U.S. 91 S.Ct. McElroy, 29 L.Ed.2d Workers v. 367 U.S. Cafeteria (1971). 1743, 1748, (1961). 81 S.Ct. 6 L.Ed.2d 1230 (S.D.N.Y.1971). F.Supp. 34. 333 Brewer, 471, 481, Morrissey v. 408 U.S. (1972). S.Ct. 33 L.Ed.2d 484 35. 405 U.S. 92 S.Ct. 31 L.Ed.2d 228 36.Supra n. 29. period were rely princi Benefits for evidentiary hearing. They

tion pending resolution of normally withheld pally upon Goldberg Kelly,39 v. wherein appeal, provided Supreme Court held the administrative welfare benefits pro terminated without first peal could not be filed.41 recipient pretermination viding the with system held that this The district court acknowledge clear dis hearing. They “(a) proper- process because violated tinction between welfare benefits (b) denied at an inad- ty interest been [had] and the Goldberg issue in (c) equate hearing reviewa- [was] here, at issue but compensation benefits length of novo until an unreasonable ble de distinction, insofar as the argue that the suggest time.”42 The court went on concerned, of due are dictates whereby the state could certain methods purportedly argument This ineffectual. bring procedures compliance into its decisions, supported by two district court the due clause: Vermont, supra, and Wheeler State of provide expedited hearing can for an [I]t Steinberg v. Fusari.40 bring can the initial de novo.... [I]t previously, Steinberg in- As indicated hearing procedures up to a minimum (due process) constitutional attack volved a regard, es- of fairness. In this standard system of terminat- the Connecticut expeditiously sential fairness can be compensation ing unemployment benefits. by setting achieved in some instances system, a claimant’s the Connecticut Under in communicating to claimants forth and eligibility on the continued was determined quantifiable advance a standard concern- biweekly report in basis of a submitted ing employ- effort to find reasonable unemploy- person by the claimant to the example, if ment. For a stated number compensation report con- ment office. This visited, employers of must a claim- be two written forms—one contain- sisted of acknowledgement that he had seen ant’s claimant ing a sworn statement that the required fewer than the number would available for work and had made had been controversy the factual and eliminate employment efforts to obtain reasonable provide adequate an basis for denial of during previous period, the the 2-week benefits.43 containing employers a list of the other suggestion noted that no It is to be during period contacted the claimant the guideline given in this decision with was If, question. upon receipt report, in of this regard pretermination hearing. ato paying official determined that the appeal- later Steinberg decision was eligibility questionable, the claimant’s was Supreme ed to the Court. While said a claimant would be directed to “seated peal pending, enacted ma- was Connecticut fact-finding interview” with a examiner. jor revisions its insurance The examiner would then conduct a more procedures. pro- The Court noted the new thorough inquiry bearing into factors cedures as follows: eligibility. the claimant’s If he deter- provides mined that the claimant had maintained his The amended statute for eligibility during period ques- status to review creation aof staff of referees tion, immediately; Ref- benefits were tendered the examiners’ decisions de novo. however, oppo- appointed by Employ- if are to the examiner reached the erees be conclusion, Review, Security were withheld. ment Board of site days appeal Supra 2. took more than from 39. n. decision percent days. and that 97.4 took more than 75 Supra 40. n. 20. delays These were considered excessive process. thus violative of due system, 41. In its review of the Connecticut average delay district court found that the Supra 42. n. days. resolving appeals claimant was 126 It percent also found that 99.4 of the intrastate appellate Id. appeals at the first administrative level appointed by of which are three members errors made in initial de- of pro- The statute further Governor. terminations. “shall vides referee section con- Thus, rapidity administrative of such as sist of referees the board deems significant review is a in assess- factor necessary prompt for the processing sufficiency the entire appeals hearings and decisions and cess. performance imposed duties added.) (Emphasis Appeals act.” from the referees’ adopt following We view Employ- decisions are to be taken to the respect to the Steinberg decision and hold Board of Review and it to dispositive issue before us: thereafter to the courts. state Implicit in the holding Court’s legislative history indicates that in Steinberg is procedural the idea that Legislature anticipated the Connecticut require does not a evi- full these amendments would have a dentiary hearing prior to the discontin significant impact speed on the uance appel of benefits as contended the resolution contested fairness of present lant in the case. The Steinberg emphasis claims.... Particular was court simply remanded case for re placed improve on the need the State’s light consideration in Con revisions appeals. treatment administrative It necticut law. These revisions did not recognized was that Connecticut’s tor- provide pre full hear -termination pid system appeal administrative rather, ing, merely but were de markedly was to those used in inferior signed speed up the time in appellate other States. Revision of the post hearing -termination was afforded. system was designed remedy If the Supreme opinion was of problem. In the words of one member of pre-termination that a con up the House: “The bill ... sets stitutionally required, they would not unique system designed which is to cut have Steinberg remanded the for case [appellate] that backlog.” down light further consideration in of revisions (Citations omitted; added.) emphasis which did not even provide for such a revisions, light In of these the Court Thus, hearing. it is clear that all is court, vacated the decision the district required by the Due Process is a Clause the remanded cause for reconsideration procedural whereby scheme a claimant is and stated: evidentiary afforded a full within hearing formality procedural “The requisites and time reasonable after termination process] hearing for due can vary, [a of benefits.46 depending upon importance light of what we consider to interests and the involved nature Supreme position on Court’s the instant subsequent proceedings.” In this con- issue, process we to decline follow text, possible length wrongful contrary position taken the district court deprivation unemployment benefits in Wheeler. important assessing an in factor impact private remaining action on with respect to of official Prompt adequate interests. and the due proce- ad- issue is whether the provides oppor- ministrative employed by provide review dures this state ade- tunity quate consideration and correction notice the claimant and full 385-86, Court, Supra preme n. 419 U.S. at 44. confronting S.Ct. at a similar due 537-38. argument (involving the termination of disabili- stated, ty benefits), "Only Goldberg in has the Id. at at 95 S.Ct. 539. 45. process requires Court held that due an eviden- tiary hearing prior temporary deprivation.” to a Supra n. 385 N.E.2d at 445. Accord Id. 424 U.S. at Meystrik, 96 S.Ct. supra Graves v. n. 24. See also Math- Eldridge, supra ews v. n. wherein Su- this act to which under a redetermination time after his within reasonable section, decision pursuant to this he terminated. benefits have been entitled, he shall be has been found notice, previously pointed As to sum, shall, repay such and/or in liable to that at the time the claimant makes his out commission, be the discretion of the lia specific he receives initial claim for benefits deducted ble to have such sum from respect and instructions with oral written payable to him. future remaining eligible responsibilities to his in added.) (Emphasis language of this in-person contacts (e.g., for benefits several clearly unambiguously and makes it section “quantifiable standard.” per week—a See prerogative of the commission to deter- Furthermore, prior supra). Steinberg, percentage mine the sum or of future bene- depart eligibility interview with the in fits to be deducted the case of an over- ment, given the claimant is written notice case, Gray payment. appellant In this re- report to the effect that he must his efforts he was not entitled ceived benefits which accurately employment to secure and that comply failure with the due to his own insurance his requirements. department’s work search part on the information he will be based recoupment A of those benefits deduct- provides. forms We conclude such percent equivalent of an sum of adequate. notice are Gray due left in no benefits otherwise Respecting lapse ap the time from position than he worse would have been peal appel to decision on the administrative overpayment in had he not received the level, respondent late claims that on the place. first We find no abuse of discretion average decisions are rendered well within and therefore no reason to disturb the com- the federal limits established / prerogative. mission’s “Promptness Standards.” This contention We affirm the board of review’s deci- record, supported by appellants and sions in these consolidated eases. argue contrary. do not Further more, system this state’s of administrative STEWART, HOWE, JJ., con- OAKS appeals comports ap with that cur. parently sanctioned DURHAM, (concurring and dis- Justice Steinberg, supra. Fusari v. We there senting): post-termination fore conclude that the evi-

dentiary hearing fully utilized in this state majori- II concur Parts IV complies procedural with the dictates of ty opinion, III but dissent from Part process. portions of Part I. III, majority opinion In Part the holds IV. PROPRIETY OF OFFSETTING procedures that the used to terminate OVERPAYMENTS BY DEDUCTING pellants’ unemployment benefits do not vio- FUTURE BENEFITS process rights late due under the Utah appellant Gray’s ques- turnWe now to Constitution, the United States Constitu- regard propriety tion with to the of the tion, Act, Security or the Social 42 U.S.C. department’s recouping overpay- method of § 503(a)(1) (3). and I believe ma- that the specifically, Gray ment of More benefits. jority analysis is in its mistaken on both percent claims that the deduction of 100 of and, further, questions I believe that a due recoup overpay- his future benefits to the process analysis under the Utah Constitu- ment made to him was excessive and thus appropriate. tion alone would be department’s an abuse of the discretion. I 35-4-6(d) Employ Section of the provides in Security regard: Act this Regarding question the compliance of fault, Act, any person, by If reason of his own the majority with Social the promptness has received sum as benefits under relies the federal stan-

823 Court, summary speaking in for appeared dards and on the affirmance the later Department support that Torres v. New York disavow rationale. In State of 15 Labor, majority opinion 31 footnote of the in 405 U.S. 92 S.Ct. Fu (1972), 419 proposition Steinberg, that sari v. U.S. L.Ed.2d 228 for the 533, 539, (1975), S.Ct. 42 L.Ed.2d 521 the requirement pretermination “the hear Court criticized the district court for reach ing comport Supreme does not with Court same believe, first, conclusion advocated subject.” decisions on this opinion majority here: delays appellants’ in not cases do and, comply promptness with standards interpreted District Court our second, majority’s conclusion re summary that in affirmance Torres indi- garding Supreme opinions on that are U.S. Court cate not “due” under § majori administratively this is unwarranted. The 303 until pay- deemed in at ty, computes delays F.Supp., able. footnote While is plausible reading of range these cases within of 23 to 49 the evolution and five Torres, periods affirmance of it days. apparently are is not one that These calcu taking we can lated the time between the date endorse. Such a definition of the appeal requirement due’’ filing of to the date of at “when of federal law decision would appellate vitality the first administrative level. As leave little Java opinion notes, however, nullify congressional majority would intention itself requiring Supreme prompt provi- administrative concern U.S. Court period during sion benefits. See 402 Java was about median U.S., S.Ct., at eligible 1353-1355], 130-133 at claimants’ benefits were sus [91 By reading summary pended pending appeal. on our affirmance in decision California broadest, at pt. Torres its Court Human District Resources De Java, 121, 133, heightened the 402 U.S. 91 S.Ct. tension between that judgment dispo- more 28 L.Ed.2d 666 and our considered When date benefits, interpreta- A suspension termination rath sition Java. narrower appropri- er appeal, than the notice of tion Torres would have been used cases, periods these five ate. delay appellants comply

these do not with Any statutory that em promptness periods standards. Those are: timeliness, accuracy, bodies notions of (1) (2) Payotelis: days; Gray: days; feasibility inevitably and administrative (3) (4) Chytraus: days; days; Schoen: 50 generate fact-specific applications. will (5) addition, days.1 Alvarado: 62 instance, many In this of the factual majority’s analysis significance distinctions that the District Court relied opinion of the Torres trial level distinguish on to Torres on the constitu summary affirmance the U.S. apply equally tional issue “when square subsequent does question. delay due” For example, the comments The trial Court. court in resolving appeals administrative on the Torres relied fact New York’s considerably greater in Connecticut than system provided periodic for a redetermina system, in the New York where adminis tion of for benefits and reasoned appeals trative were resolved in an aver that benefits were not un therefore “due” age days. 45of See Torres v. New York § 503(a)(1) der 42 U.S.C. until each redeter- Labor, 432, Dept. F.Supp. 321 State of completed, mination was as set forth in the (S.D.N.Y.1971). And, 439 as the District majority opinion. Notwithstanding observed, appar Court the Torres court (in vote) summary ently Court’s affirmance a 6-3 did probable not consider the accu Powell, holding, challenged of the racy procedure Torres Justice of the in de- cases, probably 1. In several these benefits were actual- time additional should included ly retroactively considerably period terminated to dates in the are considered to be without earlier already had than notice. Since claimants unemployment compensation income. benefits, however, past that received only specu- can 387, at 538. 95 S.Ct. adequately assured termining “[W]e it whether might operate. system how the new See late “when due.” delivery of benefits statutory And, assuming that the federal not under- at 936. We do F.Supp., satisfied, prove were it would requirements of fac- identify the combination take to question of to assess the equally difficult decision. justify Torres tors that 388-89, process.” Id. summarily, procedural due Having decided the case once only S.Ct. at 539-40. again. to do so We we decline should that the District Court indicate language it be clear this should From undertaking precluded felt from not have disposition in Supreme Court’s that statutory analysis precise a more due does not decide the Steinberg in empowered to do it felt issue than Rather, disposition only demon- that issue. case. “principle of operation of the strates the explained by Justice from this discussion restraint” prudent It be seen by appellants respect- 401 U.S. Georgia, raised in v. Harlan Sanks 593, 597, Act has not been 27 L.Ed.2d ing the 91 S.Ct. Social (1971). all fact constel- definitively determined for Supreme by the Court. lations U.S. of funda- always a matter has been [I]t Court, princi- principle with this mental equally applica- limitations are The above very institutional na- ple dictated our question. due to the federal ble obligations, that ture and constitutional essentially avoids majority opinion powers judicial review exercise our we extrapo- question, analysis of that instead necessity. As said in only as a matter of opinions Supreme lating from U.S. Court Petrillo, 332 U.S. v. United States position is. In discuss- that Court’s what 1538, 1540, 91 L.Ed. S.Ct. 1877] import Steinberg, [67 v. su- ing the of Fusari (1947), consistently refrained “We have interpretive majority adopts the

pra, constitutionality passing on the from Supreme the Indiana Court view of involving it until a case has statute opinion Supreme Court was of the “[i]f stage the decision of a reached a where hearing pretermination was constitu- that' a is a necessi- precise constitutional issue required, they would not have tionally [sic] ty.” further Steinberg remanded the case for did light of revisions consideration which unemploy- Had the revised Connecticut hearing.” provide for such a not even properly compensation procedures Supreme on an come Court before this conclusion is unwarranted believe peal from the district court’s decision adopted by this Court as and should not be case, Supreme might remanded Court In dispositive important an issue. his of so only preter- very well have decided that opinion Steinberg, Justice Powell re- mination would have satisfied diffi- peatedly that it would be both states course, can- process requirements. Of Supreme inappropriate cult and this; only speculate, since not know we can light to decide the case analysis that issue in the there is no amendments that were made to Connecti- point any position opinion. The is that appeal. “In cut law while the case was on Court on the basis circumstances, ascribed inappropri- it these we think Specula- speculation. of this case is mere by the ate to the issues tendered decide ground upon dispose no tion is parties. therefore vacate the decision We appellants’ important claims. constitutional and remand for recon- of the District Court intervening light sideration II changes in law.” Connecticut Fusari of the tenuous and unclear state Steinberg, 419 U.S. 95 S.Ct. view statutory un- the federal law on 42 L.Ed.2d 521 “We are both claims, process in federal due I do not meaningfully able to assess the issues present even treat the feder- appeal this on the record.” Id. believe we should

825 analysis, al issues until we have first determined its this Court should treat protections by what are afforded Utah’s the state constitutional issue before con- appellants All Constitution. five contend sidering the federal for at least Department Employment Secur- First, three approach reasons. this would ity’s practice terminating their unem- permit treating us to avoid the federal ployment prior hearing benefits without a question at all if we are dispose able to process denied them due of law. Such a this appellants case favor of solely on protections contention is not limited to the grounds. state constitutional See Ameri- by process afforded the due clause of the can Federation Labor v. California United It States Constitution. also neces- Employment Development Department, sarily protections includes the afforded Cal.App.3d 88 Cal.Rptr. 152 process the due clause of the constitution This is especially prudent of our own state.2 course a case such as this where there is I, Article section 7 of Utah Constitu interpretation no clear of the federal issues person tion states that shall be de by Supreme “[n]o Court. life, prived liberty property, without Second, we should treat the state consti- process due of law.” As noted in Un we ground tutional prac- first because such a Commission, termyer v. State Tax tice will principled result in a more 214, 222-23, (1942), Utah 129 P.2d analysis directed of the facts contained process substantially this due clause is sim the case majority opin- before us. As the ilar to that of the Fifth and Fourteenth amply demonstrates, ion analysis of the amendments to the federal Constitution. appellants’ process due claims has been In Untermyer we stated that “[decisions attempt reduced to an to divine what the Supreme of the Court of the United States Supreme Court “must have meant” its process on the due clauses of the Federal procedural various dispositions. Very little ‘highly persuasive’ Constitution are as to paid attention has been deciding whether application of that clause of our state specific appellants’ facts of the situa- constitution.” Id. Yet decisions of the tions process denied these individuals due Supreme dispositive Court are not of our majority state, of law. The does not and I interpretation of our own state constitu find, any prior cannot decisions of this tion. This power Court retains the to inde appellants’ Court that determine that the pendently interpret process the due clause right process state to due satisfied of the Utah Constitution. post-termination hearing for the termina- independent analysis required Such an tion of benefits. The issue by this Supreme case. The United States impression is thus one of first juris- this spoken Court has not with a clear voice on requires diction and analysis. question. Supreme To follow the Finally, treating the state constitutional Court in this require matter would an inter- grounds first develop- would further the pretation “precise of the precedential sig- distinguishable ment of a body nificance of a series of rather of state bewildering summary dispositions constitutional law. factually process The due related clause Supreme suits Steinberg Court.” Utah Constitution should not serve Fusari, (D.Conn.1973) F.Supp. merely as a reminder to search the volumes (footnote omitted). Supreme reports. Court’s United provides States It indicated, remand of Steinberg, people as have of this protections state with provides finality interpretation. no may greater in some instances than appellants rely specifically 2. While the do not Although may ous and uncertain. we of course I, Constitution, on art. legitimately 7§ of the Utah interpret federal law on our own where the U.S. general read their chal- ruled, logical Court has not it is more lenge enough encompass particu- as broad it appropriate for us to look first to Utah’s larly interpreta- since the status of the federal guarantees. constitutional ambigu- tion of the federal due clause is by ignoring request hearing those for a afforded the federal Constitution. By treating a fee the state constitutional issue determine what would be reasonable first, may develop performed. this a Court add for services This Court con- readily distinguishable body more of law cluded: separate

interpreting potentially due Many times when the work done is not process people pos- rights that the Utah great compensation and the to be allowed enjoyed under the sess addition to those small, comparatively the commission federal Constitution. may granting a fix the fee without first Economy hearing .... of time and ef- A. fort to all concerned those cases this due A common theme of Court’s practical makes it for the commission to process process “hears cases is that due experience compen- fix a fee from its condemns, proceeds upon inquiry, before it hearing sation cases without as to the only after judgment and renders trial.” performed. value of the services But if Riggins, District et al. v. Court Salt attorneys applicant or ask [sic] 183, 217, al., City, et 89 Utah 51 P.2d Lake hearing for a on the matter ... before (1935); Harris, Christiansen v. the fee is fixed ... the same should be (1945) 109 Utah 163 P.2d satisfy granted require- in order to (Wade, Wolfe, J.J., McDonough and concur- process. ments of due ring result). Christiansen, in the In this at Id. 207 P.2d at 183. process stated that due did not nec- Court Utah, In Rupp City, v. Grantsville essarily require judicial action and that its (1980), appellants P.2d 338 were resi- met, cases, requirements proper could be pay dents of Grantsville who refused to a by executive or administrative action. mandatory connection fee to the mu- $300 provid- But all these methods and means nicipal system. city sewer Pursuant ato protection ed for the and enforcement of ordinance, appellants water service to the rights human have the same basic re- they paid Ap- was cut off until their fees. quirements party no can affect- be —that pellants argued that the termination of action, legal rights ed such until his their water service because of their failure subject inquiry by have been the of an a pay mandatory connection fee was - person body authorized law to de- deprivation property an unconstitutional rights, inquiry termine such of which process without due of law. This Court notice, party has due and at which he had stated that “the demands of due opportunity give to be heard and to concept rest on the of basic fairness of rights evidence as to his or defenses. procedure procedure appro- and demand a Id. 163 P.2d at 317. priate just parties to the case and This Court has never followed a hard and (footnote omitted). involved.” Id. at 341 fast always rule that a must be post-termination hearing This Court held a provided deprived before one to be sufficient in this situation on two any property magni- interest of whatever First, grounds. there was no tude. But in those cases where it has requiring hearing prior fact resolution at a approved post-termination considered and to termination of the water service. This proceeding, this has demonstrated a Court was not faced with “a situation degree injury consistent concern for the dispute where a concerning bona fide exists might procedure from a result allow- liability amount due or the only subsequent hearing. for plaintiff (citation payment.” Id. n. 9 Commission, omitted) added). (emphasis Thatcher v. Industrial only ques- (1949) (Pratt, 115 Utah 207 P.2d 178 legality tion was the ordinance. Id. C.J., dissenting), Second, statutory procedure Court considered a at 341. existed, claim that the Industrial paying protest Commission de- under and the mu- appellant attorneys nied nicipality accepted of law payment various mandatory upon unemployed relation to the con- force the schemes and worker fee, any thereby “alleviating family. eco- his The nection achievement of social pay- hardship security requires protection incident to the initial against nomic this great Id. at 342 n. 11. of our ment.” hazard economic life. § 1953, U.C.A., 35-4-2. recently, this Most Court considered employer appealed an who the In- case of strong language The of this statute can- Commission Board of de- dustrial Review’s ignored. not be I cannot see how such unemployment cision that increased its “serious menace” averted or the “crush- compensation contribution for failure rate by force” its burden of alleviated timely quarterly report pay- and to file interruption of unemployment benefits to employer The that it ment. contended was eligible those are who to them. receive denied due of law when its contri- precarious The financial situation of most prior rate was bution raised without a hear- people eligible are who for such benefits ing. in- It was noted that because the purposes almost insures that being contribution still creased rate was Employment Utah Security Act will not be contested, yet paid the employer had not upon met interruption payments. of rate. Commission of the increased record, example, The shows that imposition This Court held that the interruption appellant of her Payo- benefits by increased contribution rate the Commis- bill, telis pay became unable to her utility employer’s sion not violate the due did difficulty making had payments, her house rights adequate cess because it had an appliances had sold several household to subsequent opportunity heard “and to be raise cash had been forced to borrow it has not injured because been Moreover, money daughter. her from prior of assessment the increased rate cycle perpetuated vicious in these cases evidentiary hearing.” Convales- Vali as claimants whose benefits are terminated cent Care & Institution v. Industrial they have not required because made the Commission, 33, Utah, (1982) 649 P.2d in-person inquiries number subsequently of added). (emphasis yet find it more pay difficult to for their transportation to meet the re- opinions past of this show the quirement in the future. I think facts magnitude injury private of to the interest legislative show that the same concern paramount, exclusive, to be though of provision dictates the importance. In interpreting our state’s uninterrupted benefits also dictates clause, we must review the whole provision eligible to those them. to receive procedure “ap- to determine it is whether Kelly, Goldberg U.S. propriate just parties to the case Cf. S.Ct. 25 L.Ed.2d 287 involved,” Rupp, supra, at but we give special weight magni- should Uninterrupted eligible recipi benefits to deprivation tude of from the results guaranteed only by pretermina ents can questioned procedure. hearings potential tion because of com plexity Roy of the factual issues involved. B. Department er v. Employment State state, public policy as de- 118 N.H. Security, 394 A.2d Legislature, speaks clearly clared our (1978). Obviously, the situation are we devastating impact unemployment: today faced with is unlike faced the one we insecurity unemploy- Economic Rupp, due to pretermin- where held that no health, is a required, serious menace to the partly ation because morals, and people question welfare of the of this Rupp, no fact inwas issue. Unemployment requires ap- supra, Rather, state. ... at 341. proce interview propriate legislature pre- action Department Employ dure which the spread lighten vent its its and to burden ment made its initial decision to which now so crushing often falls with appellants’ terminate not af does ap- whether the appel Additionally, for the opportunity ford a sufficient adequate notice that pellants ever received job adequacy of their explain lants terminated as a their benefits could be search. notice result of the interviews. Such a re- denied benefits as Appellants were them pears provided to have been attending an interview sult of their interviews, all of the after the end of their contacts. This submitting a list of exchange part was com- substantive because the decision procedure is defective pleted. the written list appears to be based on guidelines set forth would follow submit, procedure is with- appellants opinion Court Gold against adequate safeguards misunder- out 1019-22, 266-71, at berg, supra, at 90 S.Ct. standings, omissions or inaccurate submis- adequate pre- regarding the outlines of an sions. hearing. recipient termination The should an unrealistic Written are submissions detailing “timely adequate have notice recipients, who lack the option for most proposed termination.” the reasons for necessary to educational attainment 267-68, at 1020-21. The Id. at 90 S.Ct. cannot obtain effectively write and who recipient should be allowed to state his professional assistance. impartial position orally before an decision- recipient given be an supra, 397 U.S. at 90 S.Ct. maker. The should Goldberg, opportunity to confront and cross-examine Eldridge, at 1021. Accord Mathews by 893, 907-08, Department. witnesses relied on 319, 344-45, 96 S.Ct. U.S. nature of such a Because of the informal problem This is illus- L.Ed.2d 18 accompanying hearing and the relaxed by here. The form trated the record evidence, documentary evidence rules by Department vided did not contain alone would in some instances be sufficient Payotelis enough spaces appellant support recipient’s the termination contacts, supplemen- and the list all of her payments. hearing then afford The would tal to the form was lost list she attached opportunity explain recipient an Department. Appellant Gray, miscon- inaccuracy untruth or of such evidence. struing purpose procedure, listed recipient should be allowed to retain only thought what he were his con- “best” counsel, though provid counsel need not be tacts. Finally, ed for him. the “decisionmaker’s My inadequacy belief in the of the sub- recipient’s eligibility conclusion as to a closely mission of written lists is related to solely legal must rest on the rules and Depart- created the additional defect hearing.” evidence at the adduced Id. give appellants ment’s failure to Compliance 90 S.Ct. at 1022. with this opportunity represented by to be counsel require last standard would that the deci before the decision to terminate their bene- report why sionmaker he reached his con fits was made. on, he clusion and what evidence relied issues, help Counsel can delineate the though report need not amount to for present the factual contentions in an or- findings mal fact and conclusions of law. manner, cross-examination, derly conduct hearings granted that were these generally safeguard the interests of appellants the termination of their after recipient. appear adequately benefits meet 270-71, Goldberg, supra, 397 U.S. at rudimentary minimum standards of presence S.Ct. at 1021-22. The of counsel process required preter- I believe are in a up only would not have cleared the confu- hearing. mination The record that was appellants experienced sion several of the kept hearings, these order to facilitate interviews, at their but it would also enable review, judicial necessarily would be appellants to be advised before required pretermination stage. in the signed Nevertheless, prepar- the “statements” that were hearing because a full with a Department. required point ed for them the record would be at some in a recipient’s appeal, off, Department might Payotelis laid Ms. had not drawn unem- find it simply delay most efficient to termi- ployment twenty years. benefits for nation of hearing benefits until after the appellant’s At the before the held. referee, peals her counsel cogently at- Any increase in administrative costs that tacked the two-to-three new con- might holding result from hearings before applied tact rule as Payotelis’ to Ms. situa- terminating outweighed Testimony tion. showed that within the eligible claimant’s prompt need to receive metropolitan Salt Lake area there are payment and consistent of benefits. The about 12 companies. exterminator If one Department loss to the paid of sums to includes those’ areas more than a reason- ineligible recipients can greatly be reduced Payotelis’ residence, able distance from Ms. by prompt system of hearings. Further- the number is not greatly increased. Ms. more, greatly tempered the loss in Payotelis was therefore limited in the num- many through recovery instances of over- of employers ber she could contact who payments by against set-off future bene- qualify would employers as who would hire Royer, supra, fits. See 394 A.2d at 832. “occupational someone in her field.” More- case, any potential “the abuse some over, diligent job search rapidly would procedures designed protect all ... exhaust qualified number of “new” cannot be the deciding basis for whether contacts Payotelis Ms. would have to make procedures required are to meet the of the rule. Federation, cess.” supra, American Payotelis Ms. did every contact extermi- Cal.App.3d Cal.Rptr. at at 199. nator in the area. Because of her knowl- I would hold that the due clause edge of the business and because of her of the Utah requires Constitution that a experience being off, own laid she knew hearing be afforded a claimant before his probably that most would not hiring. unemployment benefits can be terminated. Nevertheless, she every compa- contacted I join would thus have this Court the courts ny. wasting gasoline Instead of by inquir- Hampshire, California and New person every company, she called held have the same based on their state personally first and only visited those that Federation, constitutions. American su- allowed her fill application. out an She pra; Royer, supra. Because would de- kept furthermore in contact with all of the Constitution, cide this case under the Utah companies to determine whether I would not reach the of whether hiring changed. situations had the due clause of the United States Constitution has been violated. Payotelis’ strategy Ms. recom- only by mended to her good its eminent Ill sense, precarious but also her financial I also dissent majority’s from the conclu- being off, situation. Payo- Since laid Ms. Department sion Part I that the subjec- only telis’ source of income has been her tively applied in-person require- contact unemployment compensation. She must Agnes ment in the Payotelis. ease of make a monthly payment $125 on her mo- bile home. Appellant hearing, At the time of her Agnes Payotelis she forty- is a pay gas bill, had been nine-year-old utility unable to her recently woman who has most had pest appliances sold several exterminator, worked as a control household position raise cash Depart- technical licensed and had been forced borrow Agriculture. gas money daughter from her She worked at her so as to be job years being hearing. last for three able to attend her before laid It seems en- July off on job, tirely 1982. Prior to her last reasonable that one in such an ex- she had position worked at another treme senselessly exterminator would not waste company. then any portion Before she had also meager had of her resources on a experience as a seamstress. Until she was personal series futile visits. majority finds “no evidence whatso- rigid application ever of a or inflexible CORPORATION, FASHIONS FOUR in-person-contact requirement.” To the Williams, corporation, Elgin Utah syllogistic contrary, rigid reasoning Respondents, Plaintiffs and appeals referee is evident from the face opinion. only of his written referee ASSOCIATES, FASHION PLACE a lim- Payotelis notes that Ms. had been aware of Garwood, partnership, ited and Bob requirement to make at least two or Appellants. Defendants prospective three contacts to em-

ployers each week and that she had failed No. 18194. requirement between to meet this October Supreme Court of Utah. summarily He then con- October 23. not met the cludes that she had April

requirements Department of Em- ployment Security for three weeks in Octo- Payotelis’ particu- analysis

ber. No of Ms. response and no

lar circumstances to her

attorney’s arguments are contained in the language

referee’s written decision. The opinion quoted by ma- referee’s

jority period refers to the after No- applicable

vember 28 and is not period.

earlier Department’s

I would overrule the deci- 3, 1982, denying

sion from October

through October eliminate resulting overpay- assessment of an special

ment. There be some merit to opposed contact as phone to a

call, I expertise and do not Department Employment Security However, respect. appear it does from Payotelis,

the facts of this case that Ms. business, experience in

based on her

intelligently prudently conserved her by calling

resources ahead to discover personal prove

whether a visit would I

worthwhile. can see little sense in re-

fusing telephone to allow the use of the appropriate

those cases where it is requiring people

instead of limited means knowingly waste last dollars on

certainly personal futile contacts. If the

Department requiring has some reason for

this, it should state it in the context of opinion

these appeals facts. application

referee is a mechanical in this case has been

shown to be irrelevant and futile. would

reverse.

Case Details

Case Name: Gray v. Department of Employment Security

Court Name: Utah Supreme Court

Date Published: Mar 22, 1984

Citation: 681 P.2d 807

Docket Number: 19005, 19127, 19321, 19322 and 19346

Court Abbreviation: Utah