FUSARI v. STEINBERG

Transcript: 

Argument of Donald E. Wasik

Chief Justice Warren E. Burger: We will resume arguments in number 73-848 and you may proceed counsel.

Mr. Donald E. Wasik: Mr. Chief Justice and may it please the Court.

I must emphasize that the interviews in question here are not contests between the department employee and the claimant.

The employee is a neutral party.

He is just gathering the facts.

He has no interest, there's no money coming out of his own pocket here.

There are no charges or any defenses that the claimant has to meet or make.

All he has to do is tell it like it is or was the past two weeks.

The Steinberg situation shows that the seated interviews do not always result in a denial of benefits.

Indeed, he was advised and instructed on how he could improve his efforts to meet his obligations to be eligible and he was then paid.

The department system was certainly fair to him as it is to all claimants.

Claimants here would have us believe that simply by registering with the employment service and meeting the wage credit requirements that from then on they have a right to keep on collecting without saying or doing any more.

This ignores the explicit requirements of the statutes that the claimants who receive benefits must each week be able to work and make reasonable attempts to secure employment.

Chief Justice Warren E. Burger: Suppose at this early stage, the applicant is asked some questions which involved his efforts to get work and some challenge is made to that, is he permitted an opportunity to corroborate that?

Mr. Donald E. Wasik: Yes he is Your Honor, testimony of the office manager, one of the local offices, there is a deposition in the record, shows that he says he would like to have a witness or if he needs a doctor's certificate or something like that, he is given time to get this.

Chief Justice Warren E. Burger: Or I suppose a letter from some perspective employer --

Mr. Donald E. Wasik: Yes.

Chief Justice Warren E. Burger: Who says that he had no work that week but if he'd come back two weeks later, he might have something for him.

Mr. Donald E. Wasik: Yes Your Honor, he's given this opportunity.

Such a right we submit to benefits is at best a conditional right.

If I may analogize, this is comparable to a man being given a key to an apartment building.

He can get into the building but unless he has keys to the individual apartments, he cannot get into these apartments.

So, as a man registers for benefits, registers for work with the local office and meets the wage credit requirements, this is the key to the building.

But he can't get into each apartment unless as each week, he meets the requirements of showing that he has made reasonable attempts to secure employment and that he has not restricted his availability.

He is able to work.

Justice Byron R. White: Well you would have a different -- you perhaps wouldn't be here at all if the termination, if you want to call it that was for another reason, was for a continuing reason that was ascertainable at the outset.

Mr. Donald E. Wasik: Well, counsel may disagree with me but that I believe is correct Your Honor because all of the facts pertaining to the named claimants here, concern their efforts and their availability for work, information which they themselves supply.

Justice Byron R. White: But if it were a question of the wage credits.

Mr. Donald E. Wasik: Wage credits, now this has already been determined.

Justice Byron R. White: Well, it's already been determined, what if you suddenly redetermined it to cut him off.

Mr. Donald E. Wasik: No, if there is a question on his wage credits, if a question arises that maybe he doesn't have sufficient wage credits, as pointed out in the record, he is given a notice that there will be a hearing at such and such a time.

Justice Byron R. White: So the answer is, you think the rule would be different then?

Mr. Donald E. Wasik: Yes Your Honor.

Justice William H. Rehnquist: Mr. Wasik, Mr. Steinberg lost on his appeal to the board, didn't he?

Mr. Donald E. Wasik: To the commission, yes Your Honor.

Justice William H. Rehnquist: And to the commission and then he had a right to appeal that determination to the superior court.

Mr. Donald E. Wasik: That is correct.

Justice William H. Rehnquist: And would he have had a right to raise a constitutional challenge to the validity of the hearing in the superior court?

Mr. Donald E. Wasik: Yes he would Your Honor.

As this Court recently said in the Arnett v. Kennedy case, property interests are not created by the constitution, rather they are created in the dimensions defined by existing rules or understanding stemming from independent source such as state law.

This is exactly the situation here.

The Connecticut statutes which provide these benefits also require an affirmative showing by the claimants each and every week for which they seek these benefits.

That Connecticut's procedures do not result on wholesale denials of benefits, as our opponents would have us believe.

This is pointed out by the very financial condition that Connecticut finds itself in now.

Justice Thurgood Marshall: Mr. Wasik, would it be a good excuse for not attending one of these hearings if the man says I'm not getting a job?

Mr. Donald E. Wasik: Yes, Your Honor.

If he called and said I cannot make my appointment today, I'm going on a job interview, no problem.

They would ask him to call back to tell whether or not he did receive the job, if he was given a job and if not, to then come in and --

Justice Thurgood Marshall: I was just wondering you'd take one of five days part of his job seeking, to sit around and talk.

Mr. Donald E. Wasik: Well, the day that he comes, while some of them may spend a good part of the day there, the procedures are scheduled so that he does not spend the whole day there.

In fact, if the policy works correctly, they expect the individual to come dressed to seek work, if in fact they happen to have the referral the day he comes in for his interview.

So they do not --

Justice Thurgood Marshall: Well, it's different from any other place I hace ever seen in my life, and sit around all day usually waiting for your name to be called.

Mr. Donald E. Wasik: That may be Your Honor.

Justice Thurgood Marshall: Is that different in Connecticut?

Mr. Donald E. Wasik: Not exactly.

Justice Thurgood Marshall: You shouldn't think so.

Mr. Donald E. Wasik: On May 1st of 1969, Connecticut had in its unemployment compensation benefit fund, over $298 million.

This fund has been depleted to the point where we are now in debt to the US Government $62 million and this doesn't count the approximately $65 million at stake and in each year from the employers who are being taxed.

Further, there are estimates showing that we will have to borrow in 1975 and 1976 even though the maximum tax rate on the employers has gone from 2.9 last year to 5.0 this year and will go to 5.9 next year.

In conclusion, I will simply say that these claimants have all received benefits form the very system that they're challenging.

They are very happy with Connecticut's informal hearing when it expeditiously awards them benefits but they are unhappy when the same procedures result in a denial of benefits for one or two weeks.

Justice Byron R. White: Mr. Wasik there is something in the briefs about taking three months for an appeal to be resolved.

Is this the usual experience?

Mr. Donald E. Wasik: At the present time Your Honor, yes.

There is longer than we would like to have delay period but again I would point out this is due to the number of appeals and backlog of being redundant, backlog of cases.

But I would point out that this is a separate entities, unemployment commission adheres these cases.

They are not a defendant in this case.

Plus this is subsequent to a hearing which we believe meets due process requirements, therefore it's not relevant.

Justice Byron R. White: And a person cut off for not making efforts to find work and make efforts the next week and get reinstated I think.

Mr. Donald E. Wasik: Yes Your Honor, exactly.

Justice Byron R. White: And were some of these --

Mr. Donald E. Wasik: I believe Steinberg was cut off and he -- although he received 26 weeks, there were extended benefits at that time and he obtained a job for a short period of time and then went back, and I believe he started receiving benefits again after a short period of time.

Justice Potter Stewart: Is the condition of your fund and that the state of the appellate lies in the fields, so that many wives reflect unusually high unemployment rate in Connecticut?

Mr. Donald E. Wasik: Yes Your Honor, it does.

Justice Potter Stewart: What's it running to?

Mr. Donald E. Wasik: I couldn't answer the percentage rate.

Chief Justice Warren E. Burger: Higher than the national average?

Mr. Donald E. Wasik: I believe it is Your Honor, yes.

It's an industrialized state.

If there are no further questions I would like to save the remaining time I have for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Creane?

Argument of John M. Creane

Mr. John M. Creane: Mr. Chief Justice and may it please the Court.

I think there is some danger in this case of a danger that was noted by, I believe was Justice Rehnquist yesterday.

That the different cases being argued here that was decided by the District Court.

I think the only way to understand this case is to go through the record and check my statements and Mr. Wasik's against what the Court found below.

Before I get into my argument, I would like to respond to a question that Justice Stewart raised yesterday concerning the rule of thumb on the reasonable work effort.

You'll find that at page 20 (a) of the jurisdictional statement in the District Court opinion.

And I'd like to read that part of the footnote from the District Court opinion.

The District Court said, it might also be noted that the record discloses some uncertainty about the standard against which reasonableness is measured.

Theodore Hatcher, Unemployment Compensation Director for Connecticut testified that there is an informal -- I'll wait until you've found it, I'm sorry.

It's on the footnote 25 on page 20 (a).

Justice William H. Rehnquist: On page what Mr. Creane?

Mr. John M. Creane: 20 (a) of the jurisdictional statement.

Mr. Hatcher testified that there was a rule of thumb that the claimant must list at least three places at which he has sought employment a week on his UC 45 form.

In response to a question from this Court, Mr. Hatcher said the claimants were advised to this rule that their benefits, rights interviewed.

However, Eleanor Smarse, manager of the Bridgeport Unemployment Compensation Office responded to a question about where the claimants were told of the rule of thumb by stating it was not an official notification that they were to tell these people if that is what happened.

But that is, there is no official number or anything in reference to this.

Thus, serious questions arise about whether a claimant can ever meet a burden of proof based on a rule of thumb that he has never heard of.

Indeed, even Mr. Hatcher conceded that in crash periods, not everyone receives a benefit rights interview at which the information is supposedly imparted.

The actual testimony for those that want to compare the context of that from Mrs. Smarse is at page 87 through 90 of the single appendix and on Mr. Hatcher pages 193 through 194 (a) of the single appendix.

Justice William H. Rehnquist: Did the District Court consider this a conflict of fact and resolve it?

Mr. John M. Creane: Well, the conflict was between the director, Mr. Hatcher and the office manager, one of them was saying, well yes, of course everyone hears about it and the person who administers the program at the local office said “no, we don't tell them there's no magic number.”

Sometimes three is enough, maybe it isn't, depends on the circumstances of the case.

Justice William H. Rehnquist: You have two witnesses testifying the two different situations.

I would think if the District Court is conducting a factual hearing, it would resolve that and say we believe A or we believe B.

Mr. John M. Creane: Well I think they did.

Thus serious questions arise though whether a claimant can ever meet a burden of prove that he's never heard about.

I think that clearly resolves it, at least it does in my mind.

Now Mr. Wasik stated yesterday that he wasn't sure that the fact finders, all of the fact finders knew about it.

These are the people, they are administering the program and he wasn't sure if they had heard about the rule thumb but that he was pretty sure that the claimants knew about it.

Now, I'm not sure what that means that the people running the system may not know about it but the claimants apparently know about it.

There is just nothing in the record to support a finding that any claimant knew about this rule of thumb and in fact, to the contrary, I would refer the Court to the depositions of one of the original plaintiffs who Mr. Wasik did not mention during his argument.

That would be Mrs. Trianna.

I think she presents a fair representation of what can happen to a person going through the system.

Justice Potter Stewart: Mr. Creane what's the -- this was my question and --

Mr. John M. Creane: Yes.

Justice Potter Stewart: -- maybe I am a wrong person to ask this but what is the relevance of this to your argument or your position in this case?

Mr. John M. Creane: Well, I think Mr. -- counsel for the appellant has laid down what he feels is the basic issue before this Court, is it a fair system?

And that I intend to go into the defects found by the District Court in the seated interview procedure and demonstrate a hope that the District Court was correct.

Mr. Wasik is saying they were wrong and the rule of thumb is just one small dose of the type of fairness that many claimants encounter in the unemployment system in Connecticut, they're not told about it.

If you look at the --

Justice Potter Stewart: But it is this -- I suppose you agree with your brother that it is the best at most a rule of thumb as he pointed out yesterday if you are a waitress and looking for a job as a waitress, it's one thing if you're a university professor and looking for that kind of a job it's another thing.

Mr. John M. Creane: The question I think is, how can a claimant satisfy a standard which he doesn't know about?

Justice Potter Stewart: Well the standard is in the pamphlet that's given to them, isn't it?

Mr. John M. Creane: The standard I think --

Justice Potter Stewart: That is by reasonable of a person out of work would do to find a job.

Mr. John M. Creane: That's on page 258 of the appendix.

Hereafter, this is the only guidance that a claimant gets on the issue of reasonable effort.

Your efforts to get a job must be the efforts which a person out of work would make if he is sincerely looking for work.

I think that standard and maybe the best that could be managed but it's devoid of any kind of guidance I think largely for claimant and at least some (Inaudible), other fact finder applying whatever standard he happens to feel is reasonable for that claimant.

Now there are some office memos that are also set out in the appendix that spell out in more detail what reasonable effort it is and as Mrs. Smarse in her deposition stated, there is virtually an infinite number of factors that can be taken into account on determining reasonable effort.

The only one who has access to any of these memos, or has any idea of what standard he is being measured against is the fact finder.

The claimant simply goes into it blind.

Chief Justice Warren E. Burger: Would it be possible to have a man or a public announcement of all the factors that would relate to every type of confinement in every type of case?

Mr. John M. Creane: No I don't think that would be practical Mr. Justice.

What we're --

Chief Justice Warren E. Burger: Does not this manual section that Mr. Justice Stewart referred to communicate to an applicant that is supposed to do or she is supposed to do, whatever he or she would do to get a job if there were a no unemployment insurance.

Mr. John M. Creane: Well that may be what's intended but it still comes down with subjective --

Chief Justice Warren E. Burger: Doesn't it come through?

Mr. John M. Creane: Apparently not.

It comes down pretty much to a subjective determination.

Chief Justice Warren E. Burger: Well what else would it mean if it doesn't mean that?

Mr. John M. Creane: Well it depends for one thing the department has recognized that the unemployment rate in the area is one of the factors that a fact finder should take into consideration on what is reasonable.

Obviously if there are a lot of jobs available, you're expected to go out and find one of them as suppose to when there are fewer or none, the department is recognized that there is little point in making a person run around fruitlessly.

And yet, again in the deposition of Mrs. Smarse, she said that she has never -- as far as she knows, they're not -- the fact finders are not given that information and she's never seen it in a fact finding decision and yet that's supposed to be one of the factors on reasonable effort.

Chief Justice Warren E. Burger: Do you suggest that it is a policy decision that the harder a job is defined, the less you're supposed to do to find one?

Mr. John M. Creane: I think that is reflected in department memos that they will not require fruitless chasing around when there simply are no jobs available.

Chief Justice Warren E. Burger: Well, would that vary with the kind of work?

Mr. John M. Creane: Yes, certainly.

Chief Justice Warren E. Burger: In other words, if as the present economic condition is today, the building trades are having a very high rate of unemployment, it is reasonable to think that a man skilled in the building trades is going to have greater difficulty finding employment, isn't that true?

Mr. John M. Creane: Yes.

Chief Justice Warren E. Burger: But do you suggest that it is the policy of the United States Government of the State of Connecticut to say because it's harder to get a job, therefore you don't have to try as much?

Mr. John M. Creane: I can -- if you look at page 117 (a) of the single appendix Mr. Chief Justice.

Chief Justice Warren E. Burger: Of the appendix?

Justice Byron R. White: 117 (a)?

Mr. John M. Creane: Yes, yes Mr. Justice.

It's right about in the middle of paragraph two on what constitutes reasonable effort.

Beginning with if however, there is very little hiring taking place because of depressed economic activity and the employment service has most of the existing jobs listed in its files than a less complete round of visits to possible employers as indicated.

That's one of the factors that a fact finder is supposed to take into consideration.

Apparently they're not given the information on what the unemployment rate is, that was in the deposition of the office manager.

Chief Justice Warren E. Burger: Well, would the agents in necessarily know that?

Mr. John M. Creane: Oh yes, that's -- I mean those are Department of Labor statistics that are available by region.

Chief Justice Warren E. Burger: At that particular day or --

Mr. John M. Creane: No, it's I believe monthly information which is not passed on to the people who are supposed to be taking into consideration on making a determination.

Chief Justice Warren E. Burger: You say they might as different once a month so that at any given time, the information might be one month out of date.

Mr. John M. Creane: Well there is some time like to be sure but that's true of any of our governmental statistics, it's the most accurate information available.

Justice Byron R. White: I take it that that this system has the sit-down interviews, so called and followed by a full hearing if the person wants one at some time in the future.

What do you think the standard is that you're pushing for that should be followed before refusal or before suspension?

Do you think it's a probable cause basis or a final decision?

Mr. John M. Creane: What we are seeking in this case is exactly what the state of Connecticut is giving to other claimants in more or less the same circumstances.

In fact, where there is less compelling reasons for a hearing.

Justice Byron R. White: So what's the answer to my question, do you think that the hearing and the hearing that you're pushing forward should be designed not just to determine probable cause pending a full hearing but to finally conclude the matter.

Mr. John M. Creane: Something certainly more than a probable cause hearing in light of the --

Justice Byron R. White: Why if there's a later full hearing?

Mr. John M. Creane: Because we feel that there's very strong presence of two factors that I believe you pointed out in the Arnett versus Kennedy case.

There's a very strong individual interest in the deprivation of benefits in this case and I'd like to go into the need aspect of this program.

And secondly as the risk of error at the initial determination and it's a very substantial risk of error and thirdly, we're not talking about simple mathematical calculations that are easily solved by documentary proof.

We're talking about the application of broad fault standards, reasonable effort.

Justice Byron R. White: Wouldn't you think that if -- wouldn't you think that, or would you, that if the probable -- if all that was to be required prior determination, if that's what this is to be called is probable cause to believe that the person is un-qualified.

Would you think the sit down interview would be satisfactory?

Mr. John M. Creane: On a probable cause hearing?

No, even the present procedures would not constitute a probable cause hearing, in light of the defects that were noted by the District Court.

I think at a minimum, the claimant has to have advanced notice and an opportunity to bring witnesses with him.

Now, it's undisputed --

Justice Byron R. White: Well you don't even need that to arrest somebody.

Mr. John M. Creane: Pardon?

Justice Byron R. White: You don't even need that to arrest somebody.

Mr. John M. Creane: What, advanced notice?

Justice Byron R. White: Or a chance to litigate about probable cause before a magistrate.

Mr. John M. Creane: I think the criminal situation was not analogous to a man or may be his only source of income being taken away from him.

I think it's very close to the welfare situation, if not exactly on all force.

Although, I recognize that there is no need test in unemployment.

There's no requirement that you demonstrate need.

I think this Court has already recognized in Java that Congress intended this as a salary replacement during the worker's period of unemployment.

And I think it's also un-disputable that many unemployment claimants are living very close to the edge of subsistence and it isn't very difficult to see why.

In Connecticut, the average wage several years ago was $150.00 a week.

The average claimant received 40% of that average income which comes out to about $60.00 a week.

Before his benefits are even terminated, his back may already be to the wall.

He may already be in a position where he's just on a subsistence income there without talking about denying any additional benefits.

Now, there was one other point, Mr. Justice that you raised about a week to week, the man can go back out again and get his benefits.

I would call your attention to -- again in the appendix, to the affidavit of Mrs. Triana.

That would be at page 135 (a).

I'm not going to read the entire affidavit but the gist of it is, this is what happened to Mrs. Triana.

She had been collecting for two to four weeks.

She walked in to the unemployment office in Bridgeport and they said, you haven't filled out your card properly, now the woman doesn't speak English.

To my knowledge, this benefit rights booklet is not even reproduced in Spanish or at least it was not at that time.

They said no, you didn't use reasonable effort, fill out this form properly next time you come back in.

She came back in two weeks later and she had her six signatures on the card.

She hadn't write down there and they said “well, you did it all in one day,” that isn't reasonable effort and she explained to them that her son who acted as her interpreter, had to go around with her on the one day that he could, off again.

She was denied six consecutive weeks, finally got her hearing about three months later and the commissioner found, one of his finding is the fact is that she was desperate for work.

She sought work throughout the labor market.

He restored for those six weeks.

Mr. Miranda, another one of the plaintiffs in this case, denied eight consecutive weeks on the issue of reasonable effort.

No, the first two or four were unreasonable effort, the next four they denied simply because he had an appeal pending.

It's against department policy but it's in the stipulation of facts that it happens.

When he got his hearing, the commissioner restored all eight weeks and said that that fact finder was wrong eight times in a row on the issue of reasonable effort.

So I think that, while the department policy is that it's week by week, very often that is not the impact on the claimant.

Justice Thurgood Marshall: Mr. Creane, can I back up a bit, what type of notice do you want?

Mr. John M. Creane: What type of notice?

Well I think on the -- there's a good model for this Court, for the District Court to follow if it's affirmed and remanded in the proposed consent order that the state has filed in this case.

I think this is important for the court to take note of.

What the department has said is that on an initial -- on a redetermination of eligibility, on an initial disqualification, they now recognize that due process requires that they give advance notice, right to bring in counsel, right to present evidence.

That's what we're looking for and they're giving it in situations where a claimant, they feel -- they had made an error on this initial wage credits and they -- it's a simple mathematical calculation and yet they recognized they will now --

Justice Thurgood Marshall: Well, let me give you a hypothetical case.

The authorities know nothing of what happened last week with applicant A and he is coming in for a weekly seated conference.

What notice do you give him, do you want?

Mr. John M. Creane: Do we want.

Well we want if an issue arises as to possible disqualification, we want them to tell him --

Justice Thurgood Marshall: Is there any issue at that stage?

Mr. John M. Creane: When he walks in?

Justice Thurgood Marshall: Yes.

Mr. John M. Creane: Not unless the department raises one.

Justice Thurgood Marshall: Well does he need notice?

Mr. John M. Creane: No.

Justice Thurgood Marshall: Well do you want notice or not?

Mr. John M. Creane: We want notice from the point at which the department says it's a question, we've got a question about your eligibility then we want notice.

Justice Thurgood Marshall: Whatever will do?

Mr. John M. Creane: That's -- as long as it's effective notice but we would want --

Justice Thurgood Marshall: Well he comes in and he says “I have spent the last week on the beach.

Now, I haven't looked for a job.”

Now, does he need notice?

Mr. John M. Creane: Yes, he can waive it if he cares to and say I'd rather take -- I'll lose my week now rather than get it now and have it taken away from me later on when it's --

Justice Thurgood Marshall: Would the notice be that you didn't look for work last week.

Mr. John M. Creane: No, that's not notice, not when you walk in and you're told that moment, we've got a question and your -- you better be prepared to argue your case, that's not a notice.

Justice Thurgood Marshall: That's not the way it was argued yesterday.

I understood that you come in every week and you tell them what you have done to look for a job.

Mr. John M. Creane: No, that is not correct.

There are stipulations of fact that once your initial entitlement is settled, you come in and your benefits are routinely issued to you on the basis of handing in a signed form saying that you look for work, your two weeks are given to you, the seated interview is the exception.

It's not everyone who goes into that office gets a seated interview where you explain to the person what you did.

That's the exception I think Mr. Wasik noted that today that there are far fewer of them than claims for example.

So you don't have to go in every two weeks and prove that you were out -- well you do it away, you hand in a form but you don't sit down and explain everything you did.

So the notice you get, you're plucked from the claims line and sent over for a seated interview if there is any question about the way you filled out the form or the number of employers you listed or that it's not signed or whatever.

Justice Thurgood Marshall: Is that the way you want the notice?

Mr. John M. Creane: Where we want the notice?

No we don't object even to a seated interview.

I think in most cases, it will establish that the person is eligible.

Where we want the notice is that where to the point where the fact finder says “I've got a real question about your eligibility.”

Fine, he's now got a basis to say there's a serious question about eligibility, a hearing will be held a week from now.

It's up to the department, they can schedule it as quickly or as long as they want from that point but that's the point where we want notice.

Justice Potter Stewart: And what do you want about benefits, continue, I mean what?

Mr. John M. Creane: Yes, I think in light of the need of the claimancy as opposed to the -- there's no really countervailing interest to weigh against the claimant.

Justice Potter Stewart: Except that it's under cover.

Mr. John M. Creane: No and most -- there's again in the single appendix, over 50% of the over payments are recovered by the State of Connecticut.

This is not like welfare.

Justice Byron R. White: Don't say that there's no account of it because 50% they are.

Mr. John M. Creane: Well that's in one year.

Now that, the may -- the man make it --

Justice Byron R. White: There is a 50/50 chance so you don't get back.

Mr. John M. Creane: No, it's actually better than 50/50.

That's only for one year.

Justice Byron R. White: But any way don't say there isn't any account available.

Mr. John M. Creane: I didn't mean to imply there were none but in light of the impact on the claimant, Mr. Miranda's affidavit presents the kind of impact that can result.

The man was denied eight consecutive weeks, he had no money for rent, no money for food, depending on handouts from friends, you know call it brutal need, call it back to the wall, call it whatever you want but that's real recognizable deprivation.

Chief Justice Warren E. Burger: Is he ineligible for welfare?

Mr. John M. Creane: Well, there is no -- unlike New York, Connecticut has no aid to families with the dependent children unemployed parent program.

That was one of the factors that the District Court distinguished (Inaudible) on.

Justice William H. Rehnquist: Does Connecticut have any analogous program?

Mr. John M. Creane: No, not at the federal level.

It has a town assistance program.

Some of the claimants are clearly not eligible if they're denied for refusing a job offer, by statute they are ineligible for any town assistance.

It's kind of a -- there's no way of really telling whether someone could or could not get it.

Some absolutely can't by law, others may.

Justice William H. Rehnquist: How about the three named claimants here, is there any way of telling in there are three cases?

Mr. John M. Creane: Well, I don't think in the three, no.

Some of the proposed interveners that were not allowed --

Justice William H. Rehnquist: I mean the three named claimants, Steinberg, Miranda and --

Mr. John M. Creane: I don't think they got any involvement with the local welfare that I know of.

Justice William H. Rehnquist: Well is there any way of telling whether or not they would have been eligible for town assistance?

Mr. John M. Creane: Well, I don't believe there is any way of telling, no.

Obviously, that was not what Congress intended when it set up the Unemployment Compensation Act.

It was designed not to have the stigma of welfare attached to it.

It was a separate, partly contractual, partly social benefit program for workers and I think it frustrates the congressional intent to say well, even if they gave them the business over there, you can go and get welfare.

Justice William H. Rehnquist: Well Judge Hayes in his opinion, majority of the opinion on Torres which was affirmed by this Court relied on that fact in New York.

Mr. John M. Creane: He relied on it, right.

Justice William H. Rehnquist: Which is quite inconsistent I take it, what you say now?

Mr. John M. Creane: Well, he relied almost exclusively on brutal need.

I think this Court has gone beyond that in the weighing process on just in the Arnett and Mitchell versus W.T. Grant cases.

I don't think it's quite that simple to say there's no brutal need absolutely in every case and therefore it's distinguishable from Goldberg and maybe in the type of procedures that you require or that the District Court may require, they recognize that in their opinion.

Justice Byron R. White: What standard is governing, probable cause --

Mr. John M. Creane: Pardon?

Justice Byron R. White: What standards is governing, probable cause or (Inaudible).

On that recognized probable cause or as a pre-suspension standard?

Mr. John M. Creane: It did but there you had a governmental interest in maintaining efficiency and morale and proper operation of the department that virtually locked the scales.

The governmental interest was so strong, at least the majority of this Court apparently felt that way.

That there was nothing you could put in on the other side that could balance the scales at all.

Here we have very, very strong individual interest and minimal state interest.

Chief Justice Warren E. Burger: I understood Mr. Wasik in response to some questions earlier.

You say that if any problem arose at the initial discussion.

In other words, if the interviewer was not satisfied with the efforts to obtain employment and the applicant said, well I can -- if you can give me two or three days, I'll get you some letters.

He said that's routinely afforded now.

Is there some notice beyond that that you are urging?

Mr. John M. Creane: Yes the reasonable effort is not the only grounds for disqualification in Connecticut, it's about 60% to 70%.

But there are other efforts, I mean other reasons, refusal of a suitable job offer well you may have third party information which it's undisputed.

The fact finder is free to rely upon just on the basis of a phone call.

For example --

Chief Justice Warren E. Burger: But Mr. Wasik has indicated that if such a situation arises, he's given whatever reasonable time is required to demonstrate and record his view of the matter.

Mr. John M. Creane: Well I think on the -- if he wants to go out and bring back a witness the next day, I'm sure the department will not deny him that opportunity.

Chief Justice Warren E. Burger: Or give a letter.

Mr. John M. Creane: But we're talking about third party information which is a different situation where they're free to call up an employer and say, “was this man at your plant?”

If he says, no never heard of him.

He is free of stipulation of facts.

He is free to deny that claimant at that point on the basis of a phone conversation with an employer who is probably so busy that he doesn't have the fairness idea who was in his plant in the last week.

Chief Justice Warren E. Burger: Well you're generalizing, pretty sweeping way, aren't you?

Mr. John M. Creane: It's in the stipulation of facts, this was agreed by the parties and it was the finding of the Court.

I mean it happens.

We spent a lot of time.

Chief Justice Warren E. Burger: How do you make a finding on -- which supports the sweeping statement that you just made?

Mr. John M. Creane: I'm giving an illustration of what can happen under the seated interview.

Chief Justice Warren E. Burger: Well let's find Connecticut in stipulation, isn't it counsel?

Mr. John M. Creane: Well both parties have stipulated that this example can happen under the Connecticut seated interview system that the fact finder is free to do it.

I'd like to call the Court's attention to the proposed consent order which is on page 149 of the appendix.

The department has stated that whenever there is a monetary redetermination, in other words, a man comes in, applies for benefits, they find him eligible and then they find out they made an error later on and that he really didn't have sufficient wage credits.

They have now recognized in even in that situation which is a simple monetary calculation involved, did he have enough credits or didn't he?

The due process requires that they give him notice of the hearing, right to bring witnesses, counsel, everything and yet they stubbornly maintain that in situations where there are broad fault standards involving very subjective determinations by the fact finder, that they are not going to give that same type of hearing in that situation.

And we find that inconsistent for them to maintain that position.

Justice Byron R. White: What happens when a claimant first arrives at the office, he has never been asked for unemployment compensation report.

He has to show his qualification, I take it including the fact that he has been hunting for work?

Mr. John M. Creane: Not, -- I don't believe that's true on the initial determination, that's simply bring in your blue slip showing that you were laid off involuntarily that you have sufficient wage credits to entitlement and that you're registered for work with the employment service.

I think at the next point, the next visit --

Justice Byron R. White: When does your compensation start?

Mr. John M. Creane: Generally another appointment is set and you comment it's in the --

Justice Byron R. White: And then you show by then at that next meeting, you show what efforts you've been making to find that.

Mr. John M. Creane: That's one of the disqualifying reasons, yes that you didn't make sufficient effort.

Justice Byron R. White: Well that's one of the qualifying reasons.

Mr. John M. Creane: No, it's a disqualifying reason.

Justice Byron R. White: Alright, alright.

Do you think that if he first arrives, he shows out his papers and then he has this next meeting you speak up?

Mr. John M. Creane: Yes.

Justice Byron R. White: At that point, what happens at that point?

Mr. John M. Creane: Well --

Justice Byron R. White: Then does he explain what he's been doing or does he fill out another piece of paper?

Mr. John M. Creane: No he brings -- he hands in a slip attesting what he's made reasonable efforts and that he's been available for work.

Justice Byron R. White: So compensation doesn't start until at some point he's demonstrated that he's made some efforts.

Mr. John M. Creane: The actual first checks, no.

Justice Byron R. White: Yes and let's assume that he fills out his slip showing what efforts he has made and it isn't satisfactory.

Mr. John M. Creane: Well, then he would have the right to appeal on that two weeks but his entitlement has still been set under Connecticut law by the --

Justice Byron R. White: But you would say that your argument would apply to that situation too, to the start up.

Mr. John M. Creane: Yes, you're right.

If there are no further questions.

Chief Justice Warren E. Burger: Thank you Mr. Creane.

Mr. Wasik you have the about six minutes if you have anything further.

Rebuttal of Donald E. Wasik

Mr. Donald E. Wasik: Pardon Your Honor, six minutes do you say?

Mr. Chief Justice may it please the Court, just a few items in rebuttal.

First, counsel has brought up the affidavits of the Mrs. Triana and Mr. Miranda whereby Mrs. Triana indicates that she never had an interpreter and was never given any information as to her rights.

There was a counter affidavit and you can find this at page 145 (a) of the appendix of a Spanish speaking interpreter used in this office who testified that she gave two benefit rights interviews to this individual and did interpret for her.

And I would point out that the District Court did not have actual testimony before it from these individuals but just these affidavits.

So far as the statement about Mr. Miranda and his affidavit saying that he was denied benefits because he had an appeal pending, as counsel has pointed out.

This is against departmental policy.

Well, this does not make the system wrong, the system is alright, as he points out, this was against departmental policy.

All systems have people problems.

This is why we have so many memos.

You can see from many memos and department policy letters sent by the department that they are anxious to see that its employees do administer the system correctly.

Chief Justice Warren E. Burger: Does this record show how many employees the state of Connecticut has involved in the unemployment program?

Mr. Donald E. Wasik: I think there is evidence in the records, Your Honor.

Chief Justice Warren E. Burger: You don't recall what it is, do you, the numbers of people?

Mr. Donald E. Wasik: I believe in the Bridgeport office, at the time the deposition was taken, I think there were 40 employees in that office, that's one of the large offices.

Justice Potter Stewart: How many offices are there in the state?

How many --

Mr. Donald E. Wasik: They have offices in the major counties, there would be at least, I believe four major offices and in peak periods of unemployment they open subsidiary offices in the county where the people can file their claims.

Justice Potter Stewart: And what's the responsibility of a beneficiary of the program to seek a job geographically, how far does he have to roam?

Mr. Donald E. Wasik: The department has information as to what a labor market consists of geographically and a person would not be required to travel outside of that labor market to seek employment.

Justice Potter Stewart: Then if he lives in Bridgeport, does he have to look in Hartford?

Mr. Donald E. Wasik: No, he does not Your Honor.

It's reasonable, what could reasonably be expected of the individual.

Justice Potter Stewart: Within the area of his own.

Mr. Donald E. Wasik: Within his labor market, yes.

Certainly as he -- there is policy that as the man receives benefits, the longer he receives benefits, perhaps the wider he should make a search for work and reduce his level of what he's seeking.

In other words, we have case law that says he can look for a job as comparable as possible to his skills and income that he had before he was laid off.

But the more he goes on unemployed, then he may have to lower the extensions.

Justice Potter Stewart: Or widen his --

Mr. Donald E. Wasik: Or widen his scope of search area.

The question on third party information, counsel has overlooked the point that when third party information is used, the claimant is given the opportunity to reflect this information.

And if there is a contradictory statement, there is a statutory presumption in favor of the claimant.

And I would also add that the minimal aspect that importance that counsel will give on the governmental interest here is not just the money that's in the fund, although I would point out that this affects of course the employers who are taxed and indirectly it concerns the employees in the whole state.

But it also concerns the administrative efficiency of the local officers.

They schedule a certain number of claimants that they can handle each day and so they must expeditiously handle these claims if we had to have a so-called due process hearing where every time a question arose as to a man's efforts.

They could not handle the tremendous number of claimants who are coming in each week, there are some 40,000 claims a week during the period and issue that's in the record.

I would simply respectfully submit that this Court was correct in affirming the Torres Dinger decision and I have the opportunity now to distinguish unemployment compensation cases and welfare cases by finding that Connecticut's procedures do satisfy Due Process requirements.

Chief Justice Warren E. Burger: Thank you Mr. Wasik, thank you Mr. Creane.

The case is submitted.

Transcript: 

Argument of Donald E. Wasik

Chief Justice Warren E. Burger: We'll hear arguments next in 73-848, Fusari against Steinberg.

Mr. Wasik you may proceed whenever you're ready.

Mr. Donald E. Wasik: Mr. Chief Justice and may it please the Court.

This class action suit concerns the adequacy of Connecticut's administrative procedures which I used to determine weekly claims for unemployment compensation.

A three-judge District Court had before it two issues.

One, do the Connecticut procedures violate the so-called when due provisions of the Social Security Act and two, do they violate the due process requirements of the Fourteenth Amendment.

The lower court found that there was no statutory violation but did rule that there was a constitutional violation.

Since the District Court found no statutory violation and because no appeal was taken from that decision by the claimants, this issue is not before this Court.

Therefore the only statement on the merits of this issue which has been raised in my opponent's brief is that the lower court and the Court in the Torres, the decisions were correct in ruling that where a decision is made, that the claimant is not eligible for benefits, obviously then no benefits are due and therefore the when due provision cannot be violated.

The issues that are here are one, whether Connecticut's administrative hearing which employs a seated interview system meets due process requirements.

And two, whether the District Court in determining this first issue erred in receiving in considering evidence which relates to the appeal period subsequent to the hearing in question.

Facts generally here concern individuals who have filed an initial application for benefits.

They have satisfied the department that they have registered for work with the employment service and that they have met the wage credits requirement of the statute.

In other words they have enough earned wages from a former employer prior to their unemployment.

These people then go on a bi-weekly basis to the local office where they submit a form showing where they have gone to seek work during the past two weeks.

Now although they go every two weeks, statutes require a determination each week as to eligibility.

When they go to this interviewer, the interviewer usually will ask some questions such as “did you earn any wages during this two-week period?

Were you able to work during this period?”

He will look at the form.

If it seems as though he has made reasonable efforts during that week, he will receive his check.

If a question is raised by what the claimant says or what is in that form, the claimant is then referred to another interviewer behind the counter.

This is the fact-finding examiner who will then go into greater detail in discussing with the claimant what efforts he has made to seek work during those two weeks just ended.

Now, that basically is the situation that is before us.

And as you can see, this situation is far different from that in Goldberg against Kelly.

The claimant here actually presents his case to the decision maker.

This was the “fatal flaw” which was found in the Goldberg case.

He is heard.

In the welfare cases, generally the recipient only has to establish need at the initial proceedings when he first applies.

He then proceeds to be paid unless and until his status changes.

In unemployment compensation cases, not only is there no needs test but the statutes providing for these benefits also require an affirmative duty on the part of each claimant to each week qualify for benefits.

Now, would our Connecticut's procedures, which we submit meet due process requirements?

First, what do we mean by due process?

We submit the essence of due process is fairness, considering all the relevant factors, are Connecticut's procedures fair?

Let us see.

Justice William H. Rehnquist: A moment ago Mr. Wasik, you said under Connecticut law, the claimant must each week qualify for the benefits.

Do you mean by that that each week he has to show that he has made some effort to obtain employment?

Mr. Donald E. Wasik: Exactly that Your Honor.

In Connecticut the claimant has notice of the interview.

When he first applies, he is given a booklet that is entitled “your rights and responsibilities,” under the Connecticut Unemployment Compensation Law.

As the name implies, the claimant has responsibilities.

Not the first of which is to read this booklet which not only tells him what his obligations are but gives him helpful information as to how he can meet these obligations.

More importantly, these claimants are experienced.

All of the named claimants in this case receive benefits for varying periods of time.

Justice Thurgood Marshall: But this year, he is given no notice of what's to be discussed, right?

Mr. Donald E. Wasik: No Your Honor because the claimant -- except in the booklet itself, he knows that he has to show where and when he went to seek work.

Justice Thurgood Marshall: But no, they don't tell him that we know you didn't do it or --

Mr. Donald E. Wasik: No, we can't, we don't know ourselves until he appears.

Justice Thurgood Marshall: Oh I see.

Justice Harry A. Blackmun: But do you return, does the office each week give him referrals?

Mr. Donald E. Wasik: No, only we try to, that that's -- well I won't say it's rare.

This is why he registers with the employment service.

The employment service tries to establish referrals and when we learn that this man might be suited for this job and there is an opening, he is referred.

Justice Harry A. Blackmun: And of course if he doesn't take it, then he has to come back on and justify his refusal to take, doesn't he?

Mr. Donald E. Wasik: Yes Your Honor but --

Justice Harry A. Blackmun: In addition to that, are you telling us that he has to -- where he's not had referrals or even if he has, he's got to indicate whether he has tried and how he's tried to find a job in the previous week.

Mr. Donald E. Wasik: Yes.

Justice Thurgood Marshall: And he's not allowed to go outside the record at all.

Is he allowed to bring anybody in as a witness?

Mr. Donald E. Wasik: He can bring anybody he wants as a witness, Your Honor.

Justice Thurgood Marshall: How does he know whether he can bring the witness for?

Mr. Donald E. Wasik: Well Your Honor, if the claimant has been receiving benefits, he already by his experience, knows what he must do to collect those benefits, therefore, during that two-week period, if he knows that instead of going out looking for a job for three days, he was out fishing, he knows unless he gets off his button and looks those last two days, there’s going to be a question as to what efforts he made.

Justice Thurgood Marshall: There is, if he doesn't get a job, he knows he's going in there until somebody going to (Inaudible).

Mr. Donald E. Wasik: Not necessarily but certainly he's going to be questioned as to what efforts he's made.

Justice Thurgood Marshall: But he doesn't know what information is there.

Mr. Donald E. Wasik: No, but we have no information.

Justice Thurgood Marshall: And was he charged with anything?

Mr. Donald E. Wasik: There are no charges made.

Justice Thurgood Marshall: But why does he have to come in?

Mr. Donald E. Wasik: He has the burden of establishing that he did --

Justice Thurgood Marshall: That's right, he has the burden.

Mr. Donald E. Wasik: That he did search for work and that he was not restricting his availability to work.

Justice Thurgood Marshall: So he's guilty or not --

Mr. Donald E. Wasik: No.

Justice Thurgood Marshall: Just a moment.

Mr. Donald E. Wasik: Excuse me Your Honor, I'm sorry.

Justice Thurgood Marshall: He's guilty of not having found work.

Chief Justice Warren E. Burger: Perhaps maybe that it would be to say he is guilty if you can use that term of not establishing his eligibility.

Mr. Donald E. Wasik: Yes, the word guilty has a connotation which is not applicable in this case, I submit Your Honor.

Justice Thurgood Marshall: Well give me a better word.

Mr. Donald E. Wasik: He has failed to meet his responsibilities as outlined by the statutes and by the booklet he receives, Your Honor.

Justice Thurgood Marshall: And he failed to meet the eligibility requirements to obtain the relief?

Mr. Donald E. Wasik: That's right.

Justice Thurgood Marshall: He starts off with that.

Mr. Donald E. Wasik: No, he starts off by showing that he's registered for work.

Justice Thurgood Marshall: Why does he come in there, because he hadn't found work?

Mr. Donald E. Wasik: Yes but he also must show that he has looked for work.

Justice Thurgood Marshall: But he comes in there charged with not having found work.

Mr. Donald E. Wasik: No, excuse me Your Honor, he's not charged with not having found work.

He may be charged, if I may use that term and I don't like it.

Justice Thurgood Marshall: Well give me a better word than charge.

Mr. Donald E. Wasik: It is pointed out to him that the efforts that he made to seek work are not reasonable, there's quite a difference Your Honor.

Justice Thurgood Marshall: Where is that pointed out to?

Mr. Donald E. Wasik: The booklet itself.

He must make reasonable efforts to find work.

Justice Thurgood Marshall: And he as an ordinary layman knows what reasonable is?

Mr. Donald E. Wasik: Well it's defined in the booklet Your Honor, for his benefit.

Justice Thurgood Marshall: Do you have any trouble with the word reasonable?

Don't we have trouble with it about eight or 10 times a week?

Mr. Donald E. Wasik: But this is a standard that's applied throughout the law, Your Honor.

Justice Thurgood Marshall: Yes, I know but this man comes in, automatically, he has to explain why?

Mr. Donald E. Wasik: No he doesn't have to explain why, Your Honor.

If he has --

Justice Thurgood Marshall: He comes in, he says nothing, what happens?

Mr. Donald E. Wasik: He has a form which shows where he went to seek work.

Justice Thurgood Marshall: He comes in and says nothing, what happens?

Mr. Donald E. Wasik: They will ask him, where did you go to look for work?

Justice Thurgood Marshall: And he doesn't answer, what happens?

Mr. Donald E. Wasik: If he fails to answer, he will be denied benefits.

The statutes and the booklet tell him he must make efforts.

And if he doesn't communicate those efforts to us, how can we pay him benefits?

This is a trust fund that the administrator as a fiduciary must administer with reasonable diligence.

Chief Justice Warren E. Burger: If this is -- are you telling us that this is in effect to burden of proof which he must meet periodically just as he must meet it the first time that he comes in?

Mr. Donald E. Wasik: Yes, Your Honor, say burden of proof but certainly that's what it amounts to.

The burden is on him to show eligibility, the statutes require this.

Chief Justice Warren E. Burger: Well if he came on the first day and said I want some benefits, but refused to answer any questions, then he wouldn't get any benefits, as I take it.

Mr. Donald E. Wasik: No, he would not have satisfied the basic requirement of giving us information as to whether or not he is entitled to benefits.

Justice Harry A. Blackmun: Of course each and all of these people have qualified initially, haven't they?

Mr. Donald E. Wasik: Yes, in fact, the plaintiff Steinberg collected for 26 consecutive weeks and he was advised at this seated interview, more than one seated interview that he had better improved his efforts to find work.

Don't restrict yourself to making contacts with the local union hawk, but he did and finally he was denied benefits.

Sure because he didn't meet the -- he didn't heed the advice given to him that he has to make efforts, reasonable efforts.

Justice Potter Stewart: Just as somewhere in here in the brief, there is some time ago and then I think suggested and then denied that there’s some sort of a rule of thumb that if a person is made to --

Mr. Donald E. Wasik: Yes.

Justice Potter Stewart: Two or three or four?

Mr. Donald E. Wasik: There is a rule of thumb, it's not followed categorically.

Again, it prints, the lower court says, give them in advance a certain number of places to go.

Well this just wouldn't work out.

If you required somebody who is looking for a waiter's job to go to 10 places, this might be reasonable.

But a professor of some university was out of a job, there are just so many places he can go and you can't require him to go to 10 places.

What is reasonable for the individual?

Each case has to be determined on its own merits.

Justice Potter Stewart: But there is a rule of thumb --

Mr. Donald E. Wasik: Yes for the --

Justice Potter Stewart: For the ordinary case.

Mr. Donald E. Wasik: For the ordinary case.

Justice Potter Stewart: And what is that, how many?

Mr. Donald E. Wasik: If they -- during this period when they're using this form, the examiners at the counter, if they went through three places in one week, for a each week then they were given their check, there were no questions raised.

Justice Potter Stewart: And was that pretty well known?

Mr. Donald E. Wasik: I think it was, Your Honor, I can't say that everybody, that each examiner knew that.

Justice Potter Stewart: I mean among the beneficiaries, was it?

Mr. Donald E. Wasik: I can't speak for what's in the mind of the beneficiaries but I would --

Justice Potter Stewart: Well I just wonder if there was --

Mr. Donald E. Wasik: I think --

Justice Potter Stewart: Common knowledge.

Mr. Donald E. Wasik: I think it was common knowledge that if they -- the form had six places for the two week period and if they filled out.

Justice Potter Stewart: That's a pretty good indicator.

Mr. Donald E. Wasik: Yes, Your Honor.

We would like to see more lines actually.

Now the claimant does have notice of the issues.

The lower court either deliberately ignored or completely overlooked the fact that the issue is not known to the department employee until the claimant appears.

The claimant however knows what he's done regarding his own efforts, whether or not he has restricted himself, his rest to hours or conditions of employment.

Thus he alone knows before the hearing takes place what issues might be raised?

The claimant has an opportunity to present witnesses.

Now in the majority of the cases certainly there simply are no witnesses.

The decision is based on the facts given by the claimant himself.

There were not witnesses in the Steinberg case nor were there any witnesses in any of the cases of the named claimants in this action.

Justice William H. Rehnquist: When you say witnesses, you mean on the appeal hearing or at the seated interview?

Mr. Donald E. Wasik: At the seated interview, Your Honor.

If the claimant should need a witness, the record shows that he has given time to obtain one.

Justice Potter Stewart: In other words, if a person had been held for the two-week period, I assume that that under regulations and the statute would excuse him from actively seeking work, it's true wouldn’t it?

Mr. Donald E. Wasik: No Your Honor, no.

It might -- if he were ill for one or two days, then the latter part of that week, he made sufficient efforts, reasonable efforts, he will probably be paid.

But if the man is sick for let's say four days out of the week, the statute says that he must be physically and mentally able to work.

He would not meet that requirement.

Therefore he would not receive benefits for that week.

The philosophy behind this unemployment compensation --

Justice Potter Stewart: Is that you have to be ready when you go to work.

Mr. Donald E. Wasik: He has to -- right and to look for.

Justice Potter Stewart: I didn't note that kind of temporary illness.

Chief Justice Warren E. Burger: We will pick up at that point in the morning counsel.

Mr. Donald E. Wasik: Thank you.