Alicea v. Board of Review, 432 N.J. Super. 347 (App. Div. 2013). In Rivera v. Board of Review, 127 N.J. 578 (1992), a case that, like today’s decision, involved a claim for unemployment benefits, the Supreme Court stated that there is “a State policy that the due process afforded to residents of a U.S. Commonwealth where Spanish is the predominant language should include bilingual notification.” In today’s case, notices that were sent to plaintiff, a resident of Puerto Rico who had worked as a roofer on a seasonal basis in New Jersey, telling him that he was not eligible for unemployment benefits and was being assessed over $17,000 for fraudulently obtained unemployment benefits, was written entirely in English, except for one paragraph in the middle of the document that described his appeal rights, which did appear in Spanish. Apparently in that same place, the notice also stated, in Spanish, that if plaintiff did not speak English, he should ask someone to translate the form immediately. Plaintiff, who speaks only Spanish, contended that he thought the whole notice was in English and did not see the Spanish paragraph in the middle of the document.
Plaintiff appealed, but did so after the deadline set by N.J.S.A. 43:21-16(d)(1). The Board of Review rejected plaintiff’s appeal as untimely and found no “good cause” to extend the deadline. Plaintiff appealed to the Appellate Division. That court reversed, finding a violation of due process. Judge Koblitz wrote the panel’s opinion.
The Board of Review had cited no case holding that “encouraging an individual in Spanish to have the remainder of an English form translated into Spanish constitutes sufficient notice of the form’s content to a Spanish-speaking recipient.” Nor was it enough that plaintiff’s appeal rights were spelled out in Spanish. “A fundamental underpinning of fairness in any appellate system is the communication of the actual decision made. How can a litigant decide whether to file an appeal if he does not know what was decided?” In Rivera, the Supreme Court had used a balancing test that weighed the costs of procedural improvements (such as bilingual notice) against the rights of the individual and the State. Here, where each decision sent to plaintiff was just one page, “[i]t would have been simple enough to translate the determinations entirely into Spanish…. [W]hat a small price to pay to ensure comprehension by the affected party.”