Holton v. Dept. of Employment & Training (2003-535)
2005 VT 42
[Filed 01-Apr-2005]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2005 VT 42
No. 2003-535
Steven Holton Supreme Court
On Appeal from
v. Employment Security Board
Department of Employment and Training October Term, 2004
(Town of Vernon, Employer)
Anne V. Ginevan, Chair
Richard C. Carroll and Jonathan D. Secrest of Kristensen, Cummings,
Phillips, & Carroll, P.C., Brattleboro, for Defendant-Appellant
Town of Vernon.
William H. Sorrell, Attorney General, and Bridget C. Asay, Assistant
Attorney General, Montpelier, for Defendant-Appellee.
PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and Allen, C.J.
(Ret.), Specially Assigned
¶ 1. JOHNSON, J. Employer, Town of Vernon, appeals from the
Employment Security Board's decision to award unemployment benefits to a
former town employee that the town claims was ineligible to receive
benefits. The Department of Employment and Training (Department) has
already paid all the disputed benefits to the former employee pursuant to
the Board's decision and related state and federal law requiring prompt
payment of benefits to a claimant after the first adversarial
administrative determination that the claimant is eligible. The Department
therefore moves to dismiss the appeal as moot because, as a result of
Vernon's special self-selected status as a noncontributing employer under
the unemployment statute, Vernon must reimburse the Department for all
benefits paid to former town employees, including, but not limited to,
those benefits "paid but denied on appeal" and "benefits paid in error." 21
V.S.A. § 1321(f). Thus, the Department asserts that Vernon no longer has a
legally cognizable stake in the outcome of the case because it will have to
pay the Department regardless of whether it wins or loses on appeal.
Vernon concedes that the appeal is moot; however, it claims that the appeal
fits within the exception to the mootness doctrine for cases that are
capable of repetition yet evade review, and also raises a number of
statutory and constitutional objections to the Department's decision to pay
the disputed benefits prior to Vernon's appeal to this Court. We reject
Vernon's arguments and dismiss the appeal as moot.
¶ 2. Vernon's former employee, Steven Holton, filed for
unemployment compensation benefits on May 17, 2003. In June 2003, the
claims adjudicator determined that Holton voluntarily ended his employment
as a Vernon police officer without good cause attributable to the town. As
a result, Holton was disqualified for benefits. See 21 V.S.A. §
1344(a)(2)(A) (disqualifying employee for benefits upon finding that
employee left last employing unit voluntarily without good cause
attributable to employer).
¶ 3. In July, Holton appealed to the chief appeals referee. The
referee held a telephone hearing on the claim, taking testimony from
Holton, his former supervisor, and the chairperson of the Vernon
Selectboard. A couple of weeks after the hearing, the referee sustained
the claims adjudicator's decision. Six days later, claimant appealed that
decision to the Employment Security Board.
¶ 4. Vernon chose not to participate in the Board's hearing.
Pursuant to its rules, the Board took no new evidence, but did hear
argument from Holton. The Board reversed the appeals referee's decision,
and decreed that Holton's "[c]laims are allowed for and subsequent to the
week ending May 17, 2003." The notice of entry that accompanied the
Board's decision stated that it "would become final unless an interested
party appeals the Decision to the Vermont Supreme Court by filing a Notice
of Appeal . . . within 30 days of the date of entry of the Board's
decision."
¶ 5. The Department began paying the disputed funds to Holton
soon after the Board's October 21, 2003 decision. The Department made the
payments over a six-week period from October 25, 2003 through November 29,
2003. Vernon timely filed its notice of appeal on November 18, 2003,
shortly before the Department made the last payments to Holton. The
Department argues, and Vernon concedes, that Vernon's appeal became moot as
soon as the last payment was made to Holton.
¶ 6. Though Vernon concedes that its case is now moot, Vernon
claims that its case fits within the exception to the mootness doctrine for
cases that are capable of repetition yet evade review. Vernon further
asserts that the Department acted improperly and without statutory
authority when it disbursed benefits to Holton during the pendency of
Vernon's appeal, thereby precluding appellate review of the Board's
decision. Vernon also presents an alternative claim that assumes the
unemployment statutes do authorize the Department's benefits payout, but
argues that the effect of such a statutory scheme in rendering Vernon's
appeal moot results in a deprivation of its constitutional rights to due
process and equal protection of the law. A review of the federal-state
cooperative unemployment insurance system will illustrate how Vernon's
claim became moot, and why none of its statutory or constitutional claims
entitle it to relief.
I.
¶ 7. The Legislature enacted Vermont's unemployment statutes in
correlation with the federal social security and unemployment tax acts. 21
V.S.A. § 1384. Vermont's unemployment compensation program is, therefore,
part of the federal-state cooperative unemployment insurance program that
is funded in part by grants to Vermont from the United States. See 42
U.S.C. § 1101(c)(1)(A) (providing for payments to states for assistance in
administering their unemployment compensation programs). To qualify for
this federal aid, Vermont must receive annual certification from the U.S.
Secretary of Labor indicating that, among other things, Vermont's methods
of administering its unemployment program are "reasonably calculated to
insure full payment of unemployment compensation when due." 42 U.S.C. §
503(a)(1).
¶ 8. The U.S. Supreme Court has interpreted the "when due"
language of § 503 to mean "the time when payments are first
administratively allowed as a result of a hearing of which both parties
have notice and are permitted to present their respective positions." Cal.
Dep't of Human Res. Dev. v. Java, 402 U.S. 121, 133 (1971); accord Fusari
v. Steinberg, 419 U.S. 379, 387-88 (1975) ("The basic thrust of the
statutory 'when due' requirement is timeliness."(footnote omitted)). In so
holding, the Court struck down a California procedure that suspended
payments during the pendency of an employer's appeal. Java, 402 U.S. at
133.(FN1) The U.S. Court of Appeals for the Third Circuit interpreted the
"when due" statutory language in light of Java and Fusari, and concluded
that "[t]he critical factor is timely payment to all eligible persons,
whether their eligibility is upheld initially or only after one or more
appeals." Wilkinson v. Abrams, 627 F.2d 650, 661 n.14 (3rd Cir. 1980)
(Emphasis in original.).
¶ 9. The Department points out that Vermont law is entirely
consistent with federal law on this point. Vermont's statute provides that
an authorized representative of the Commissioner of Labor shall (1) "pass
upon each claim for benefits as provided in this chapter" and (2) "promptly
award such benefits as shall be found to be payable under the provisions of
this chapter." 21 V.S.A. § 1348(a). The "provisions" of Title 21, Chapter
17 include appeals to the referee and the Board. Id. §§ 1348(a), 1349.
Accordingly, the statutory requirement that the Department promptly award
benefits applies equally to benefits found payable at all levels of the
administrative process.
¶ 10. The grants provided by the federal government make up only
a part of the overall unemployment compensation fund from which the
Department draws to pay benefits to qualified workers who become
unemployed. The remainder of the money used to pay unemployment benefits
comes from public and private employers in the state.
¶ 11. Municipalities like Vernon are provided with two options
for meeting their obligations under Vermont's unemployment compensation
law. The first option is to be treated as a contributing employer. See
id. § 1321(e) (outlining computation of employer's experience rating).
Contributing employers are required to pay regular contributions to the
unemployment compensation fund administered by the Department. Id. §
1321(a). These contributions, also commonly referred to as unemployment
taxes, are calculated using a complex formula based on the amount of wages
the employer pays out and the employer's experience rating record of claims
against the employer by former employees. Id. §§ 1324, 1325(a). Claims
awarded to former employees of a contributing employer are paid directly by
the fund with no further reimbursement from the employer, although the
claim is counted against the employer for purposes of its experience rating
record. 21 V.S.A. § 1325.
¶ 12. The second option, open only to governmental employers and
nonprofit corporations, is to be a noncontributing employer. Id. §
1321(e). These employers do not pay regular unemployment taxes into the
fund, but the fund pays for claims by their former employees. Id.
Accordingly, noncontributing employers must reimburse the fund for every
dollar in benefits paid to their former employees. Id.
¶ 13. Municipalities that elect to be noncontributing employers
enjoy an advantage over contributing employers because, unlike contributing
employers who must pay the fund even during periods when none of their
former employees make claims against them, noncontributing employers pay
only when the fund pays benefits to one of their former employees. This
self-selected status is not, however, without some drawbacks because the
statute requires noncontributing employers to reimburse the fund for "such
amounts as the commissioner finds to be due under this chapter, including
but not limited to benefits paid but denied on appeal or benefits paid in
error." Id. § 1321(f) (emphasis added).
II.
¶ 14. The requirement that the Department promptly pay Holton
after the Board's decision, in conjunction with the statutory reimbursement
provision in § 1321(f), and the unpredictable time lapse between the
beginning of the relatively short payout period and the hearing on appeal
caused this case to become moot. A case becomes moot when the parties
cease to maintain a legally cognizable interest in the outcome of the case.
State v. Fernald, 168 Vt. 620, 621, 723 A.2d 1145, 1146 (1998) (mem.). The
mootness doctrine derives its force from the Vermont Constitution, which,
like its federal counterpart, limits the authority of the courts to the
determination of actual, live controversies between adverse litigants. See
In re Opinion of the Justices, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949)
(holding that the Vermont Constitution grants jurisdiction over only actual
controversies). Therefore, mootness generally precludes appellate review.
State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370 (1993). When
mootness is raised, we must inquire, " 'whether decision of a once living
dispute continues to be justified by a sufficient prospect that the
decision will have an impact on the parties.' " All Cycle, Inc. v.
Chittenden Solid Waste Dist., 164 Vt. 428, 432, 670 A.2d 800, 803 (1995)
(quoting 13A C. Wright, et al., Federal Practice & Procedure § 3533, at 212
(1984)).
¶ 15. At this stage, we fail to see what impact a decision of
Vernon's appeal would have on the parties. By disbursing all the funds
awarded to Holton, the Department has deprived Vernon of any financial
stake in the outcome of this case because, even if Vernon were to prevail
in this Court, the Department would exercise its authority under § 1321(f)
to collect reimbursement from Vernon for all the benefits "paid but denied
on appeal" to Holton. Moreover, Vernon need not fear further liability as
a result of the Board's decision because § 1353 prohibits the collateral
use of "[a]ny determination, redetermination, finding of fact, conclusion
of law, decision, final order, or final judgment entered or made by . . .
the employment security board" in any "separate or subsequent action."
Accordingly, Vernon's appeal is moot for lack of any stake in its outcome.
¶ 16. Though Vernon recognizes that its appeal is technically
moot, it suggests that it fits within the exception to the mootness
doctrine for cases that are capable of repetition yet evade review. When
the case is not a class action, this exception is limited to situations
where: (1) the duration of the challenged action was so brief that it could
not be fully litigated before it expired, and (2) there is a reasonable
expectation or a demonstrated probability that the appellant will be
subject to the same action again. Fernald, 168 Vt. at 621, 723 A.2d at
1146. We have held that the second prong of this test requires a showing
of reasonable likelihood that the fact pattern presented will be repeated.
Id.; Gundlah, 160 Vt. at 196, 624 A.2d at 370. For example, in In re P.S.,
167 Vt. 63, 68, 702 A.2d 98, 101 (1997), we declined to apply this
exception to an appeal from a moot order of nonhospitalization revocation
because the findings on which the order was based were specific to the
facts existing at an earlier time, and any future revocations would be
based on new fact patterns. Recently, in Wild v. Brooks, we rejected the
plaintiff's claim that his nuisance suit against a temporarily shut-down
shooting range was capable of repetition yet evading review. 2004 VT 74, ¶
13, 15 Vt. L. Wk. 239, 862 A.2d 225. We reasoned that the plaintiff would
not be subject to the "same" action when the shooting range resumed
operations because it was required to do so under new operating conditions
that were sufficiently different from the old ones; thus, any opinion based
on the superseded conditions would be advisory. Id. ¶¶ 12-14.
¶ 17. The Board decision that Vernon now appeals is based on a
specific set of facts that are not reasonably likely to recur. The Board's
decision turned on the question of whether certain threatening statements
made by Vernon's police chief to Holton warranted Holton's resignation.
These statements were made in the context of a long-simmering and public
dispute between claimant and the police chief.(FN2) Vernon notes that it
employs a relatively large workforce-ninety employees in 2003-and thus
reasonably expects that it will "again have cause to challenge the
unemployment compensation claim of an employee." While no doubt true, this
general statement does not show how any future claim by a different
employee will likely present a repetition of the fact pattern underlying
the present claim. Accordingly, Vernon has not met its burden of
establishing that its case fits within a recognized exception to the
mootness doctrine; we cannot, therefore, review its appeal on the merits.
III.
¶ 18. In response to the State's motion to dismiss on mootness
grounds, Vernon raises several statutory and constitutional objections to
the Department's benefits-payment policy that resulted in the mootness
problem here. The Department contends that we should treat these arguments
as waived because Vernon did not raise these arguments prior to appeal, and
even then, omitted them in its principal brief. See, e.g., In re White,
172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (reaffirming rule that Court
will not address arguments not properly preserved for appeal); Bigelow v.
Dep't of Taxes, 163 Vt. 33, 37-38, 652 A.2d 985, 988 (1994) (treating issue
not raised in principal brief as waived). The Department's waiver argument
ignores the fact that Vernon's statutory and constitutional claims became
germane to this appeal only after the Board rendered its decision and the
Department began payments. Both the claims adjudicator and the appeals
referee had vindicated Vernon's position by denying Holton's claim. The
issues before the Board related solely to the correctness of these prior
decisions, not to the broader questions of whether the unemployment
compensation statute justifies the Department's benefits payout practices,
and if so, whether the statutes violate Vernon's constitutional rights.
The Department has not even shown that such questions fall within the
Board's jurisdiction. See 21 V.S.A. § 1349 (describing the Board's
appellate jurisdiction). The appeal did not become moot until the
Department made the last benefits payment to Holton eleven days after
Vernon filed its notice of appeal to this Court. The Department first
called mootness to the Court's attention on January 26, 2000-four days
after Vernon filed its principal brief. Under these circumstances, we
conclude that Vernon's statutory and constitutional challenges to the
Department's procedure were appropriately made for the first time in
response to the Department's motion to dismiss on mootness grounds, and we
will address them accordingly.
A.
¶ 19. Vernon claims that the Department exceeded its authority
under the unemployment compensation statute when it disbursed the funds to
Holton. The Department acknowledges that disbursement of unemployment
compensation funds can be made only within the limits imposed by the
statute, In re Platt, 130 Vt. 329, 331, 292 A.2d 822, 824 (1972), but
maintains that the controlling state and federal statutes fully support its
action. We conclude that the Department acted within its authority when it
made the disbursement to Holton.
¶ 20. After considering the statutory language discussed supra,
part I, we find no support for Vernon's assertion that the prompt awarding
requirement in § 1348 is limited to initial benefit determinations, and
does not apply to benefit awards found payable by the referee or the Board.
As we noted, the plain language applies to benefits found payable at all
levels of the administrative process, including those benefits first
awarded by the Board on appeal. This reading of the statute is also
consistent with the federal requirement that benefits be paid at "the time
when payments are first administratively allowed as a result of a hearing
of which both parties have notice and are permitted to present their
respective positions." Java, 402 U.S. at 133. Though Vernon chose not to
participate, the Board's decision satisfies the Java criteria.
¶ 21. Vernon nonetheless contends that the language in § 1348
requires only that the Department make a prompt decision on each claim, and
not that it actually disburse disputed funds once the claimant receives a
favorable decision. The Department points out that § 1348(a)'s requirement
that the commissioner's representative "pass upon each claim" is sufficient
to accomplish this purpose. Thus, Vernon's construction would render §
1348(a)'s command to promptly award "benefits as shall be found payable" as
surplusage. Our rules of statutory construction require us to consider the
statute as a whole giving effect to a statute's every word, sentence, and
clause, when possible. Woolaver v. State, 2003 VT 71, ¶ 21, 175 Vt. 397,
833 A.2d 849. Moreover, we have repeatedly recognized that the
unemployment statutes must be construed liberally in favor of claimants so
as to best effectuate their purpose of removing the economic disabilities
and distress resulting from involuntary unemployment. E.g., Howard v.
Dep't of Employment & Training, 153 Vt. 614, 616, 572 A.2d 931, 932 (1990).
Finally, we are hesitant to give the statute a construction that may
conflict with the requirements of federal law cited above, thereby
jeopardizing Vermont's eligibility for federal contributions in the
operation of its unemployment compensation program. This consideration is
strengthened by the express statutory references to the correlation between
the federal law and Vermont's law. 21 V.S.A. § 1384. Accordingly, we must
reject Vernon's construction, and conclude that the Department was both
authorized and required to disburse the funds to Holton after the Board
found them payable.
¶ 22. Section 1321(f) further supports our interpretation. As
noted, this provision makes noncontributing employers like Vernon liable
to the Department for "benefits paid but denied on appeal." 21 V.S.A. §
1321(f). By enacting this provision, the Legislature expressly
contemplated that benefits would be paid pending appellate review, and
that benefits paid might later be denied. Though the Legislature may not
have envisioned the effect that such disbursements could have in mooting
cases like this one where all the benefits due are paid prior to the
appeal, the statute still contains the authority to make the
disbursement.(FN3)
¶ 23. Vernon argues that § 1321(f) conflicts with the right of
appeal to the Supreme Court contained in § 1349, which provides that the
decision of the Board "shall be final unless an appeal to the supreme court
is taken." The Department counters by correctly pointing out that any
litigant's appeal can become moot because of "intervening factors or the
passage of time." Furthermore, § 1349 applies generally to all parties,
including employees, contributing employers, and noncontributing employers.
Of these three, only noncontributing employers will face potential mootness
problems. When a claimant appeals a denial to this Court, the claimant
will ordinarily retain a stake in the outcome because the claimant will be
entitled to compensation if the claimant's appeal succeeds. A contributing
employer also retains a stake in an appeal challenging a Board decision
that grants benefits to one of its former employees because the employer's
future rate of contribution will be affected by any claim that is charged
to its experience-rating record. See 21 V.S.A. § 1325 (explaining how a
contributing employer's experience rating record is calculated). Thus, a
contributing employer has a financial incentive to ensure that its record
is not affected by claims from employees who should have been disqualified
from receiving benefits. While this system puts some noncontributing
employers wishing to appeal from the Board at a comparative disadvantage to
contributing employers, it must be remembered that Vernon had, and still
has, the opportunity to choose its status within this system, and that its
choice comes with the relative advantage of not having to make regular
unemployment tax payments. Supra ¶¶ 6-7.
B.
¶ 24. In light of our conclusion that the unemployment statutes
authorized the Department's disbursement to Holton following the Board's
decision in his favor, we now address Vernon's claim that this result
deprives it of due process. Vernon cites City of Burlington v. Department
of Employment & Training, for the proposition that noncontributing
employers have the same Fourteenth Amendment due process rights in the
granting or denying of unemployment benefits as do employees. 148 Vt. 151,
158, 530 A.2d 573, 577 (1987). In that case, we affirmed the Board's
decision that the noncontributing employers' due process rights were
violated when they were not given notice and an opportunity to be heard at
the hearings where their liability for unemployment benefits was first
determined. Id. at 157-58, 530 A.2d at 577. We further held that the
remedy the Board fashioned for this violation also failed to satisfy the
requirements of due process because, in ordering a new hearing, the Board
improperly placed the burden of proof on the employer. Id. at 158-59, 530
A.2d at 578 We also faulted the Board's procedure on remand because the
new hearing would occur a year after the events relating to the claims took
place, and would therefore place the employer in a "significantly more
difficult" position to challenge the claims than it would have been at a
hearing conducted at the time when the claims were first filed. Id.
¶ 25. But Vernon concedes that, unlike the employers in City of
Burlington, it was given notice and an opportunity to participate in the
administrative process before a neutral decisionmaker. In fact, Vernon
participated in the evidentiary hearing conducted by the appeals referee,
but chose not to participate in the hearing before the Board where its
liability was ultimately determined. An employer who has received two
opportunities to participate in administrative proceedings prior to the
determination of its liability has received all the process it was due
under the federal constitution, and nothing in City of Burlington is to the
contrary.
¶ 26. In making its due process argument, Vernon has not claimed
that the administrative procedures used to determine its liability were
somehow deficient in terms of their procedural fairness. This is an
element of its burden in showing a procedural due process violation of the
U.S. Constitution. Matthews v. Eldridge, 424 U.S. 319, 335 (1976)
(evaluating fairness of administrative procedure for due process purposes
based on the risk that procedures used will result in an erroneous
deprivation of liberty or property, and the probable value, if any, that
additional or substitute procedures would add). Vernon has not alleged
that the rules and procedures in the administrative process deprived it of
the ability to submit evidence and legal arguments necessary to refute
Holton's claims. Nor has it claimed that the administrative officers who
handled the case lacked necessary qualifications to understand the central
issue involved. In fact, we have often noted that the Board has "special
expertise" in determining whether an employee's resignation is for good
cause attributable to the employer, and we afford its decision on this
issue great weight on appeal. Garcia v. Dep't of Employment & Training,
145 Vt. 331, 334-35, 488 A.2d 762, 764 (1985).
¶ 27. Vernon also claims that the effect of the statutory scheme in
depriving it of an appeal to this Court in this case violates Chapter I,
Article 4 of the Vermont Constitution. The Vermont Constitution mandates
that "[e]very person within this state ought to find a certain remedy, by
having recourse to the laws, for all injuries or wrongs which one may
receive in person, property or character." Vt. Const. ch. I, art. 4. We
have treated Article 4 as the Vermont equivalent of the federal
constitution's Due Process Clause, Quesnel v. Town of Middlebury, 167 Vt.
252, 258, 706 A.2d 436, 439 (1997), and we have interpreted Article 4 as
requiring adequate access to judicial process. E.g., Shields v. Gerhart,
163 Vt. 219, 223, 658 A.2d 924, 928 (1995). As discussed, the effect of
the statutory scheme on this case has not resulted in a violation of the
federal constitution's Due Process Clause even though Vernon will not have
access to an appellate law court in this case. Thus, a similar result
should obtain under Article 4.
¶ 28. We have, however, stated in dicta that, in light of Article
4, we would hesitate to interpret an "arguably ambiguous" statute as
foreclosing judicial review of administrative agency action. Vincent v.
Vt. State Ret. Bd., 148 Vt. 531, 534 n.2, 536 A.2d 925, 927 n.2 (1987). We
are not presented with such a problem here because this statute is
unambiguous. It does not foreclose judicial review in all cases involving
noncontributing employers. To the contrary, it expressly provides all
interested parties the right to appeal the Board's decision to this Court.
21 V.S.A. § 1349. The reimbursement provision of § 1321(f), in
conjunction with the relatively short disbursement period for this
claim,(FN4) rendered this particular noncontributing employer's appeal moot.
While appeals by other similarly situated noncontributing employers may
suffer the same fate, the statute does not by its terms foreclose
noncontributing employer appeals from judicial review of agency action.
C.
¶ 29. Vernon next argues that § 1321(f)'s requirement that
noncontributing employers reimburse the Department for any benefits "paid
but denied on appeal" violates the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution. "Absent a suspect
classification or a violation of a fundamental right, a legislative
classification does not deny equal protection of the laws if it is
rationally related to a legitimate public purpose." In re Letourneau, 168
Vt. 539, 553, 726 A.2d 31, 41 (1998). Vernon concedes that its
self-selected status under the unemployment statutes is not a suspect
classification, and that no fundamental rights are involved here. Thus,
applying the rational basis standard, we have no problem in discerning a
legitimate governmental interest that supports the disparate treatment
between contributing and noncontributing employers.
¶ 30. As we noted above, noncontributing employers do not pay the
unemployment taxes from which the fund receives the money that covers all
benefits paid to claimants regardless of whether the claimants were
employed by a contributing or noncontributing employer. By requiring a
noncontributing employer to reimburse the fund for all benefits paid out to
its former employees, the State ensures the financial integrity and
liquidity of the fund. In a sense, there is little disparity between
contributing and noncontributing employers because all the unemployment
taxes that contributing employers pay into the fund are forever lost to
those employers, although their future rate of contribution will be
affected by only those claims that are upheld on appeal. Nothing in this
system offends the Equal Protection Clause.(FN5)
Dismissed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. The California program that the U.S. Supreme Court struck down
in Java suspended payments for a median period of seven weeks pending an
employer's appeal after an initial determination. 402 U.S. at 133. Here,
the appeal took substantially longer than seven weeks. The Board issued
its decision granting benefits on October 21, 2003. The appeal from this
decision was not heard until October 2004, almost one year later.
FN2. From the record, this matter appears to have personal undertones for
both claimant and Vernon officials. At oral argument, Vernon's counsel
stated that, notwithstanding its lack of any financial stake, the Town
still seeks vindication for its specific personnel decisions and the
conduct of its officials in this matter. Though its desire is
understandable, it is not a legally cognizable stake in the outcome of this
case. If, however, the Board's decision turned on the validity of a Vernon
personnel policy of general application to all of Vernon's employees, it is
possible that Vernon's appeal could proceed because a precedent-setting
decision from this Court on the policy's viability could affect its
financial stake in future cases likely to arise under the policy. This is
not such a case.
FN3. Vernon argues that through an amendment to § 1321(f), the Legislature
could solve the mootness problem that will arise in some cases involving
appeals by noncontributing employers. It argues that the Legislature could
omit the language that creates noncontributing employer liability for
benefits paid but denied on appeal, thus preserving the noncontributing
employer's financial stake in the outcome of the appeal. In the absence of
any constitutional infirmity in the statute, see infra, Parts II.B, II.C,
we must leave the policy considerations that such an amendment would entail
for the Legislature to resolve.
FN4. The benefit claim here was for six weeks. By contrast, the
Department's counsel stated at oral argument that the median benefits
period lasts twenty-six weeks.
FN5. Without citation to authority, Vernon further contends that we should
still strike down § 1321(f) on equal protection grounds in spite of our
conclusion that it is rationally related to a legitimate governmental
interest. To the extent we understand it, Vernon's argument is that the
Legislature failed to consider the effect that the reimbursement provision
would have on the appeal rights of noncontributing employers, and thus it
should be invalidated as arbitrary and capricious. This argument is
without merit.