Guerrero v. Carleson

512 P.2d 833, 9 Cal. 3d 808, 109 Cal. Rptr. 201, 1973 Cal. LEXIS 228

• Court: California Supreme Court
• Decided: July 30, 1973
• Docket: L.A. 30079
• Status: Published

Opinions

Opinion

MOSK, J.

Plaintiffs appeal from an order denying their application for a preliminary injunction prohibiting the directors of the State Department of Social Welfare and the Los Angeles County Department of Public Social Services from reducing or terminating welfare payments to recipients who defendants know are literate in Spanish but not in English, unless notice of such reduction or termination was given in the Spanish language.

The sole issue is whether the welfare authorities are compelled by the Constitution to prepare such notices in Spanish. We conclude that although in appropriate cases the use of Spanish in these and similar notices would be desirable and should be encouraged, it does not rise to the level of a constitutional imperative.

The named plaintiffs are three individuals¹ who had been receiving Aid to Families with Dependent Children (AFDC), a federal-state-county funded categorical assistance program. (42 U.S.C. § 601 et seq.; Welf. & Inst. Code, § 11200 et seq.) Under applicable regulations, recipients of such assistance are entitled to receive “timely and adequate” notice of any proposed reduction or termination of benefits. “Timely” is defined to require that the notice be mailed to the recipient at least 15 days before the action is taken; “adequate” means that the notice must include, inter alia, a written explanation of the reasons for the proposed action, of the recipients’ right to request a “fair hearing,” and of the fact that benefits will continue to be paid throughout the hearing period if the request for the hearing is made within 15 days. (45 C.F.R. § 205.10; State Department of Social Welfare, Manual of Policies and Procedures: Eligibility and Assistance Standards, § 22-000 et seq. (hereinafter SDSW Manual).)²

The complaint alleged that defendants sent notices of reduction or termination of benefits in the English language- to plaintiffs; that plaintiffs were unable to read such notices because they are literate only in Spanish; and that plaintiffs failed for this reason to request a fair hearing within the appropriate period, resulting in immediate reduction or termination of their benefits. Although constituting a general denial of plaintiffs’ right to relief, the answer admitted that defendants did print some welfare forms in Spanish. It was also stipulated between the parties that the Los Angeles County welfare authorities knew the individual plaintiffs in this case did not speak or read English but did speak and read Spanish; that the authorities routinely make an effort to determine if a recipient is literate in Spanish but not in English; and that if it is learned such is the case, the language handicap is conspicuously noted on the recipient’s file.

Plaintiffs’ contention—that defendants are constitutionally mandated to give reduction or termination notices in Spanish to those welfare recipients known to be literate in that language but not in English—is based primarily on the due process clause. Plaintiffs concede there is no direct authority for this proposition, but rely rather on Goldberg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011], and its progeny. In Goldberg the United States Supreme Court held the due process clause requires that a welfare recipient be afforded an evidentiary hearing before as well as after termination of benefits. In the course of its opinion the court observed that the recipient must be given a “timely and adequate” hearing notice (id. at p. 267 [25 L.Ed.2d at pp. 298-299]), but did not spell out the contents thereof in any detail. The notice actually furnished under the New York City law challenged in Goldberg consisted of a letter to the recipient followed by a conference with a caseworker. Of this procedure the court merely said, “Nor do we see any constitutional deficiency in the content or form of the notice.” (Id. at p. 268 [25 L.Ed.2d at p. 299].) Despite the fact that New York City has a large Spanish speaking population,³ there is no indication the notice was given in that language to recipients who were literate only in Spanish. Certainly the high court did not hold in Goldberg that a termination notice to Spanish speaking recipients is constitutionally inadequate unless it is prepared in that language.

Seeking additional support, plaintiffs turn to both a general and a specific authority on the law of notice. The former is Mullene v. Central Hanover Tr. Co. (1950) 339 U.S. 306 [94 L.Ed. 865, 70 S.Ct. 652], from which plaintiffs quote certain well-known passages on the adequacy of notice necessary to satisfy due process.⁴ We have no quarrel with the general principles there enunciated, but they are of little assistance in solving the particular problem at hand. Whether the notice here given was calculated “under all the circumstances” to convey the required information obviously depends on an appraisal of those circumstances, an inquiry we shall pursue infra.

The specific authority relied on by plaintiffs is Covey v. Town of Somers (1956) 351 U.S. 141 [100 L.Ed. 1021, 76 S.Ct. 724], in which a notice of judicial foreclosure for delinquency in paying real property taxes was sent to a propery owner whom the authorities knew was mentally incompetent and unable to understand the meaning of any such communication. Shortly after foreclosure the property owner was certified to be a person of unsound mind and was committed to a state hospital for the insane, and a guardian of her person and property was appointed. Reversing the foreclosure judgment, the United States Supreme Court quoted the foregoing language of Mullane (ante, fn. 4) and ruled that “Notice to a person known to be an incompetent who is without the protection of a guardian does not measure up to this requirement [of due process].” (Id. at p. 146 [l00 L.Ed. at p. 1026].)

We agree with this application of the Mullane principles, but we cannot, fairly equate plaintiffs’ knowledge of Spanish rather than English with an unsoundness of mind justifying appointment of a legal guardian. An incompetent may be unable to understand an official notice no matter how it is explained to him. By contrast, the plaintiffs in the case at bar are in full possession of their mental faculties and are admittedly literate in Spanish; accordingly, they are able without question to understand a translation of the notice into that language. The issue, therefore, is whether governmental agencies can reasonably believe that upon receiving the notice plaintiffs will seek and obtain such a translation.⁵

The United States is an English speaking country. Despite California’s early Spanish culture, the language of our state government has long been that of the waves of American settlers who migrated here when California joined the Union. Although a declaration that all official writings shall be in the English language (former Cal. Const., art. IV, § 24) was deleted as surplusage in the 1966 revision of our Constitution, section 8 of the Welfare and Institutions Code still provides, as do many of our codes, that “Whenever any notice, report, statement, or record is required or authorized by this code, it shall be made in writing in the English language” (Italics added.) Justice Holmes declared a half-century ago' “it is desirable that all citizens of the United States should speak a common tongue.” (Meyer v. Nebraska (1923) 262 U.S. 390, 412 [67 L.Ed. 1042, 1051, 43 S.Ct. 625, 29 A.L.R. 1446] (dissenting opinion).) And this court recently recognized that “The state interest in maintaining a single language system is substantial . . . .” (Castro v. State of California (1970) 2 Cal.3d 223, 242 [85 Cal.Rptr. 20, 446 P.2d 244].)

It is a truism that life is more difficult in an English speaking country for a person who does not speak English; indeed, it would likewise be more difficult for an American living in Mexico who does not speak Spanish. But the difficulty is not limited to understanding a notice of reduction or termination of welfare benefits. It may be felt, in addition, each time the person finds it necessary to deal with fellow citizens—e.g., when he seeks to rent an apartment or buy a house, to purchase food at a grocery or clothing at a department store, to obtain medical care, or to apply for a job. It may also be felt whenever the person has a need to deal with the government or its agencies—e.g., when he seeks to apply for immigration or citizenship, to obtain a driver’s permit, to be licensed to conduct a business, to fill out tax forms, or to qualify for social security or unemployment insurance benefits. The government may therefore reasonably assume that such individuals experience strong and repeated incentives either to learn the English language or to develop a reliance on bilingual persons who can translate for them when necessary.

It is also reasonable to assume that in contemporary urban society the non-English speaking individual has access to a variety of such sources of language assistance. To begin with, he may turn to members of his family, friends, or neighbors, who were either born in this country or received some schooling here.⁶ If these prove inadequate or unavailable, he may contact representatives of governmental agencies⁷ or private organizations devoted to (1) counselling immigrants, (2) assisting particular nationalities, linguistic groups, trades or professions, (3) protecting individual rights to welfare or other governmental benefits, or (4) furnishing legal aid to the poor.⁸

Finally, the government may reasonably assume that the non-English speaking individual will act promptly to obtain such assistance when he receives the notice in question. We have examined the various forms of notice employed in this case: each is printed on letterhead of the Department of Social Services of Los Angeles County; each is personally addressed to the individual plaintiff, by name, address, and case number; each is obviously an official communication, with boxes checked and blanks filled in by hand; and each is dated and signed by a social worker or similar departmental representative. Plaintiffs repeatedly emphasize that welfare payments play a crucial role in their daily lives. We have no doubt this is so. For the same reason, however, it may fairly be assumed that a welfare recipient would not be so disinterested in his family’s livelihood as to simply ignore an official document delivered in the mail which has every appearance of relating to his right to receive public assistance payments.

After reciting the above-quoted (ante, fn. 4) demands of the due process clause on governmental notices, the Mullane court explained (at pp. 314-315 of 339 U.S. [94 L.Ed. at pp.. 873-874]): “But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. ‘The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.’ [Citations.]” In view of the foregoing “practicalities and peculiarities” of the case at bar, we conlude that it is not unreasonable for the state to expect that persons such as those in plaintiffs’ position will promptly arrange to have someone translate the contents of the notice here challenged.⁹ Accordingly, prior governmental preparation of that notice in Spanish is not a constitutional imperative under the due process clause.

In somewhat desultory fashion plaintiffs also contend the present system violates equal protection principles. It is argued that to send notices of reduction or termination of welfare benefits in English to recipients known not to be literate in that language is arbitrarily to discriminate against them by creating “a class of recipients who are to be denied aid without being duly and properly informed of the same.” The argument begs the question. If, as. we hold herein, the notice as now given is constitutionally adequate under all the circumstances, plaintiffs are not denied “due” and “proper” information affecting their right to aid.

Plaintiffs’ reliance in this connection on Castro v. State of California (1970) supra, 2 Cal.3d 223, is misplaced. We there held it would violate the equal protection clause to apply the English literacy voting qualification (former Cal. Const., art. II, § 1) to persons who are literate only in Spanish, yet have access to substantial sources of political information in that language. In so holding, nevertheless, we specifically rejected any suggestion that the state was required by the equal protection clause to provide such persons with ballots and election materials printed in Spanish: “Whether such a radical reconstruction of our voting procedures is constitutionally compelled, however, is a separate question. It is clear that the goal of efficient and inexpensive administration, while praiseworthy, cannot justify depriving citizens of fundamental rights. But this does not imply that the state must not only provide all qualified citizens with an equivalent opportunity to exercise their right to vote, but must also provide perfect conditions under which such right is exercised. . . . California is not required to adopt a bilingual electoral apparatus as a result of our decision today that it may no longer exclude Spanish literates from the polls. The state interest in maintaining a single language system is substantial and the provision of ballots, notices, ballot pamphlets, etc., in Spanish is not necessary either to the formation of intelligent opinions on election ■ issues or to the implementation of those opinions through the mechanics of balloting. It reasonably may be assumed that newly enfranchised voters who are literate in Spanish can prepare themselves to vote through advance study of the sample ballots with the assistance of others capable of reading and translating them.” (Italics added.) (Id. at p. 242.)

Castro can of course be distinguished on its facts, but the foregoing reasoning is equally applicable here. Indeed, we are faced with an a fortiori case: just as we recognized that our holding in Castro “will apply to any case in which otherwise qualified prospective voters, literate in a language other than English, are able to make a comparable demonstration of access to sources of political information” (ibid.), so also the rule sought by plaintiffs herein would reach far beyond the present facts. As plaintiffs candidly concede, a decision in their favor could not properly be limited to the AFDC program and the Spanish language, but would also apply (1) to Spanish speaking recipients under any of the other half-dozen categorical assistance programs and (2) to any other language—Chinese or Japanese, Russian or Greek, Tagalog or Samoan—in which a non-English speaking recipient of such assistance was known to be literate, regardless of how small that language group might be.

In addition, it is difficult to see why such a rule would not also extend to any and all official communications to the public required to satisfy due process of law, whether it be summonses, citations, subpoenas, tax forms, delinquency or eviction or foreclosure notices, announcements of public hearings—or, contrary to our assertion in Castro, ballots and election materials. Thus in Carmona v. Sheffield (N.D.Cal. 1971) 325 F.Supp. 1341, affd. per curiam (9th Cir. 1973) 475 F.2d 738, the federal district court dismissed as untenable an action by Spanish speaking citizens complaining they were denied equal protection because the state administered its unemployment insurance program in English only. The court said (at p. 1342): “In essence, plaintiffs’ contention would require the State of California and, presumably, all other States and the Federal Government to provide forms and to conduct its affairs and proceedings in whatever language is spoken and understood by any person or group affected thereby. The breadth and scope of such a contention is so staggering as virtually to constitute its own refutation. If adopted in as cosmopolitan a society as ours, enriched as it has been by the immigration of persons from many lands with their distinctive linguistic and cultural heritages, it would virtually cause the processes of government to grind to a halt. The conduct of official business, including the proceedings and enactments of Congress, the Courts and administrative agencies, would become all but impossible. The application of Federal and State statutes, regulations and proceedings would be called into serious question.” Again the case may be distinguished on its facts, but its reasoning is apposite to our problem. (Cf. also Lau v. Nichols (9th Cir. 1973) 483 F.2d 791.)

We close by taking notice of certain rules and practices of defendant welfare authorities on the subject of adequate communication. In a basic policy declaration the State Department of Social Welfare has fully recognized the importance of communicating whenever possible in Spanish with recipients who speak only that language.¹⁰ Other regulations require that upon a request for fair hearing the county welfare authorities notify the referee of any language disability of the claimant (§ 22-023.23), and that at the hearing an interpreter be provided if necessary (§ 22-049.7).¹¹ Furthermore, we have noted herein that the state does print some of its welfare forms in Spanish, and that Los Angeles County welfare authorities make an effort to learn if a recipient is Spanish speaking only, and to assign a bilingual social worker in such cases.

Without citation of authority, plaintiffs contend that by so doing defendants have “embarked upon conduct” designed to create a “reasonable expectation” that all future communications with plaintiffs will be in the Spanish language—in other words, that defendants are somehow estopped to continue printing in English the notice here challenged. We do not agree. There is no showing that all or even a substantial portion of defendants’ prior communications with plaintiffs were in fact in Spanish. In any event, we view these regulations and practices as good-faith efforts by defendants to do as much as can reasonably be done—within the limits of budget, staffing, and time—to insure that recipients who are not fluent in English are not deprived of their welfare rights solely because of their language handicap. These efforts are commendable, and we do not doubt they will continue and be expanded as it becomes feasible to do so. For the reasons stated herein, however, they are not compelled by constitutional command, and therefore do not give rise to the constitutional duty asserted by plaintiffs.

The order appealed from is affirmed.

Wright, C. J., McComb, J., Burke, J., Sullivan, J., and Clark, J., concurred.

1 A welfare rights organization is also joined as a party plaintiff. For convenience, however, the word “plaintiffs” as used herein will refer to the individual plaintiffs only.

2 The request may be made after expiration of that period, but in such event the reduction or termination of benefits will be effective throughout the review process.

3 In addition, the recipients individually named in the opinion (id. at p. 256, fn. 2 [25 L.Ed.2d at pp. 292-293]) bore Spanish surnames.

4 “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information [citation], and it must afford a reasonable time for those interested to make their appearance, . . . [W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” (Id. at pp. 314-315 [94 L.Ed. at pp. 873-874].)

5 It may be noted in passing that plaintiffs fail to answer a preliminary issue raised in defendants’ brief: learning a new language is a process, not an event. When a non-English speaking person is exposed to the English language, whether by formal study or simply by living in an English speaking environment, he will ordinarily pass through a long gradation of proficiency beginning with the time he knows only his native tongue until he becomes fully bilingual. At what point in that scale does “literacy” in English start and plaintiffs’ claimed right to notices in their own language end?

6 Thus the social worker assigned to the case of Mrs. Varela, one of the plaintiffs in this proceeding, declared in an affidavit that his client has at least three teenage children in her household who speak and read English, and who heard the explanation given to Mrs. Varela concerning her pending reduction in benefits.

7 For example, the social workers assigned to the cases of two of the present plaintiffs each declared' in affidavits that they speak Spanish fluently and gave lengthy explanations in that language to their clients concerning their pending reductions in benefits.

8 Thus plaintiff Varela declared in her affidavit that she took her notice of reduction in benefits to the “State Service Center” in Los Angeles where a law student explained its meaning in Spanish and helped her prepare papers requesting a hearing.

9 It is apparent that such persons, by definition, were able to obtain whatever assistance was necessary to permit them to qualify for welfare benefits in the first place.

10 “The basic responsibility for providing prompt aid and service obviously includes effective communication. Many counties have large Spanish surname populations. For many of these people, Spanish is their primary language and English (if they speak it at all) is a second language. It is essential that documents explaining appeal rights be available in both English and Spanish in these counties. These documents should not only inform the client of his fair hearing rights but also of legal or related services in those counties where they are available.

“Communication is improved when clients see themselves reflected in agency personnel. Issues growing out of misunderstanding will be reduced if the client’s expectancy of being understood is increased because there are people in the department who not only speak his language but who have similar backgrounds and are sensitive to his problems.

“Many counties are moving in this direction. They are developing forms and informational materials in Spanish and arranging Spanish language instruction for staff in the department on department time. Wherever possible, many counties are hiring qualified professional and clerical staff representative of minority groups. In addition, hov/ever, long-range planning will be necessary for counties to adequately increase staff proportion of both Spanish surname and other significant ethnic minorities.” (SDSW Manual, § 22-203.3.)

11 Plaintiffs mistakenly rely, however, on a regulation (§ 22-021.2) which requires that the notice of the right to request a fair hearing be written “in language understandable” to the recipient. As the regulation does not say “in a language understandable” to that person, the word “language” is here used as a synonym for “English.” Thus construed, the regulation means only that the notice in question must be phrased in a simple vocabulary and syntax easily understood by persons of limited education.