Opposition Brief — California Department of Human Resources Development v. Java

In the Supreme Court of the

United States

Octoszr Tzrm, 1970

No. 507

CatirorNia DEPARTMENT OF Human Re-

SOURCES DEVELOPMENT, et al.,

Appellants,

v.

JupiTH Java, et al.,

Appellees.

On Appeal from the United States District Court

of the Northern District of California

Brief in Opposition to Motion of Southern

California Edison, et al., to Intervene

Evaene M. Swann

Joun Diaz Coker

James M. Kien

Contra Costa Lecau Services Founpation

337 Tenth Street, P. O. Box 1669

Richmond, California 94801

SterpHen P. Berzon

2648 Stuart

Berkeley, California 94720

Attorneys for Appellees

ING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

TI

Bree

SUBJECT INDEX

L Preliminary Statement

IL Applicants’ Motion to Intervene of Right Should Be

Denied

A. Applicants’ Interest in This Lawsuit Is Indirect,

and Insufficient to Warrant Their Intervention ........ 2

B. The Employers’ Claimed Financial Loss as a Result

of the Decision Appealed from Is Grossly Overstated

and Speculative 5

C. Any Interest Assertable by the Applicants in These

Proceedings Is Adequately Represented ...................... 7

D. Applicants’ Motion to Intervene Is Untimely ............. 10

Il. Permissive Intervention Under Rule 24(b) Is Improper

at This Stage of the Proceedings

IV. Conclusion

INDEX TO EXHIBITS.

Exhibit A. Affidavit of George Roche

Exhibit B. Affidavit of J. E. McNeil

A eR OEE NS EES

TABLE OF AUTHORITIES CITED

Cass

Allen Calculators, Ine, v. National Cash Register Company

(1944), 322 U.S. 137

Automobile Workers v. Scofield (1965), 382 U. S. 205... 4

well, and Moore, Ine. (D. Mass. 1943), 51 F.Supp. 972. mat

Ford Motor Company v. Bizanz Brothers, Inc. (8th Cir.

1957), 249 F.2d 22 9

Hatton v. County Board of Education of Maury County,

Tenn. (6th Cir. 1970), 422 F.2d 457 1,8

Hobson v. Hansen (D.D.C. 1968), 44 F. R. D. 18 ................ 3,4

Kheel v. American 8. 8. Owners Mutual Protection and In-

demnity Association (S.D.N.Y. 1968), 45 F.R.D. 281... 3

Lupton Manufacturing Company v. United States (1967)

388 U.S. 457 4%

McKenna v. Pan American Petroleum Corp. (5th Cir. 1962),

303 F.2d 778 B

Moore v. Tangipahoa Parish School Board (E.D. La. 1969),

298 F.Supp. 288 4

Norwalk Core v. Norwalk Board of Education (D. Conn. —

1968), 298 F.Supp. 208 3

Nuesse v. Comp (D.C. Cir. 1967), 385 F.2d 694 ................... ati a

Peterson v. United States (D. Minn. 1966), 41 F. D. R. 131... 7,8

Smuck v. Hobson (D.C. Cir. 1969), 408 F.2d 175 ................8, 9, Ul

Thrifty Shoppers Serip Company v. United States (1968),

389 U.S. 580

4,10

TaBLE or AuTHosiTss CrTEp

iii

Pages

States v. Aluminum Company of America (E.D. Mo.

1967), 41 F. R. D. 342

United States v. Blue Chip Stamp Co. (C.D. Cal. 1967), 272

F Supp. 432

United States v. ete ee ee nee Se Gene Til.

1966), 242 F.Supp. 56

Westward Coach Manufacturing Co. v. Ford Motor Co. (7th

Cir. 1968), 388 F.2d 627 7

Wolpe v. Poretaky (D.C. Cir. 1944), 144 F.2d 505

Ruizs

Federal Rules of Civil Procedure :

Rule 24(a), 28 USC

Rule 24(a)(2) 28 USC

Rule 24(b), 28 USC

STATUTES

California Unemployment Insurance Code:

Section 1379

Section 2113

TREATISES

2 Barron & Holtzoff, Federal Practice and Procedure, Section

597 (Supp. 1969)

8B Moore’s Federal Practice :

para. 24.09 [4]

para, 24.13-[1]

para. 24.10 [2]

Law Reviews

Kaplan, 1966 Amendments of the Federal Rules of Civil

Procedure (1), 81 Harv. L. Rev. 356 (1967)

Shapiro, Some Thoughts on Intervention Before Courts,

Agencies and Arbitrators, 81 Harv. L. Rev. 721 (1968) ........

4,13

4,10

13

10

13

4

In the Supreme Court of the

United States

Ocroser Term, 1970

No. 507

CatirorNiA DEPARTMENT OF Human ReE-

SOURCES DEVELOPMENT, et al.,

Appellants,

v.

JupitH Java, et al.,

Appellees.

On Appeal from the United States District Court

of the Northern District of California

Brief in Opposition to Motion of Southern

California Edison, et al., to Intervene

I,

PRELIMINARY STATEMENT

On November 9, 1970, six California employers filed a

Motion to Intervene in the present case. Appellees oppose

this Motion for several reasons.

First, we submit that applicants’ interest in the subject

of this action is not a substantial one. As individual em-

ployers, applicants are members of a large class of Cali-

2 oe

fornia employers. If the District Court decision appealed

from is affirmed, and payment to an eligible claimant i

required during the pendency of his past employer’s appeal,

that individual employer will suffer no direct financial logs,

Any possible loss that might occur would be a collective ong,

spread over all California employers.

Secondly, we contend that applicants have overstated and

exaggerated their interest in this case. Appellees wil

elaborate on this contention in a subsequent part of this

brief.

Appellees further submit that any legitimate interest of

the applicants has been and will be adequately represented

by the Attorney General of the State of California and the

Chief Counsel of Appellant Department of Human Re

sources Development. Moreover, as amici curiae, applicants

will be able to further represent their interest in this litiga.

tion.

Finally, appellees submit that the Motion to Intervene is

not timely. Applicants had ample time to intervene as

formal parties when this case was before the court below,

By choosing to wait until this case was before this Court,

applicants should be prevented from intervening as formal

parties.

II.

APPLICANTS’ MOTION TO INTERVENE OF RIGHT

SHOULD 8E DENIED

A. Applicants’ Interest in This Lawsuit Is Indirect and Insufficient

to Warrant Their Intervention.

The 1966 amendment to Rule 24(a) states that an appli-

cant for intervention must claim an interest relating to the

property or transaction which is the subject of the action.

This rule has been interpreted to require that such claim of

8

interest be legally sufficient from an objective standpoint,

Kheel v. American 8. S. Owners Mut. Prot. and Indem.

Assoc. (S.D.N.Y. 1968), 45 F. R. D. 281; Norwalk Core v.

Norwalk Bd. of Ed., (D. Conn. 1968), 298 F.Supp. 208, as

well as direct, substantial, and legally protectible. Hobson

v. Hansen, (D.D.C, 1968) 44 F. R. D. 18.

Applicants, as individual employers, do not have the

direct and substantial interest that is legally required for

intervention. They contend that, if appellees prevail in this

case, they will be subject to a “substantial increase in unem-

ployment taxes.” See Applicants’ Motion, 9. Applicants

allege that this increase would result from excessive dis-

bursements from the general unemployment fund—such

disbursements resulting from unrecovered overpayments

(in the form of benefits) received by claimants whose

initial determination of eligibility has been overruled by a

referee. Applicants contend that these overpayments would

necessitate an increase in their tax rate in order to com-

pensate for the alleged losses suffered by the fund.

The proposition that an increase in the employers’ tax

would be required if appellees prevail is, at most, specula-

tive. (See Part IT B, 5 infra). However, even if we assume,

arguendo, that the necessity for an increase in the em-

ployers’ fund would arise, this would be borne by and

spread over all California employers. The effect of such an

increase on the individual employer would be relatively

small. (See Part II B 6, 7 infra.) Thus, the interest of

applicants is no greater than that of employees’ groups

and other organizations that may be affected by the Court’s

decision in this case. Applicants’ financial stake may moti-

vate their interest. This interest, however, is remote and not

substantial enough to warrant intervention.

Applicants have relied heavily on the case of Cascade

Natural Gas Co. v. El Paso Natural Gas Co. (1967), 386

PO ep ne een IES RENE Re np

‘ 3

U.S. 129, to show that private parties have a legally pro.

tectible private interest in issues of public interest. Cascadg

was an antitrust action in which the United States brought

suit to compel El Paso Natural Gas Co. to divest itself of

its subsidiary—Pacific Northwest Pipeline Co. The origing}

decision of the lower court was appealed to the Supreme

Court which, in turn, remanded the case to the District

Court and ordered divestiture. At this point Cascade Ng

tural Gas Co. and the State of California sought intervep.

tion. The facts and principles in Cascade are clearly

distinguishable from the present case. First, the Motion for

Intervention in Cascade was to the District Court, not to

the Supreme Court, as here. Second, the movants for inter.

vention in Cascade were customers of the company which

the defendant was alleged to be controlling in violation of

the Clayton Act, and the State of California whose citizens

allegedly were suffering due to the control of a natural gas

supply by the defendant. These movants were the very

parties who were intended to benefit from the government's

action in compelling divestiture. In allowing intervention,

the Court stated that the protection of California’s interests

in a competitive system was “at the heart of the matter.”

386 U.S. at 135.2

1. It should be noted that, notwithstanding the fact that the

applicants’ interest in Cascade was more direct in nature, subse-

quent cases have tended to limit Cascade to its peculiar fact situa-

tion. See e.g. United States v. Aluminum Co. of America (ED.

Mo. 1967), 41 F. R. D. 342 aff’d per curiam sub nom. Lupton Mfg.

Co. v. United States (1967) 388 U.S. 457; United States v. Blue

Chip Stamp Co., (C.D. Cal. 1967), 272 F.Supp. 482, aff'd per

curiam sub nom. Thrifty Shoppers Scrip Co. v. United States

(1968), 389 U. S. 580, reh. den., 390 U. S. 975. See also Moore v.

Tangipahoa Parish School Board. (E.D. La. 1969), 298 F.Supp.

288; Hobson v. Hansen, (D.D.C. 1968), 44 F. R. D. 18; Shapiro,

Some Thoughts on Intervention Before Courts, Agencies and Arbi-

trators, 81 Harv. L. Rev., 721, 730 (1968) ; Kaplan, 1966 Amend

ments of the Federal Rules of Civil Procedure, 81 Harv. L. Rev.

356, 406 (1967).

5

In this case, however, applicants’ interest is not sufficient

to be considered at the “heart of the matter.” As stated

pefore, as individual employers, the only loss that appli-

cants might suffer would be a collective one, borne by all

California employers. This, coupled with the fact that appli-

eants’ alleged loss is very speculative, distinguishes Cas-

cade from the present case.

3. The Employers’ Claimed Financial Loss as a Result of the

Decision Appealed from Is Grossly Overstated and Specu-

lative.

Applicants contend that if the case at bar is affirmed,

there will be an increase in the employers’ taxes which

would, in turn, lead to an increase in the amount of taxes

paid by each employer. This rise in the tax rate is predi-

cated on a projected loss to the unemployment insurance

fund due to payments of benefits which are subsequently

determined to be incorrect. This argument completely

ignores the fact that the State has several methods of re-

couping any overpayments in addition to voluntary repay-

ment by agreement, such as offsets against future un-

employment or disability benefits and restitution to avoid

criminal prosecution. California Unemployment Insurance

Code Sections 1379 and 2113. Thus, applicants’ contention

that there will be a significant loss to the fund must be con-

sidered in light of these statutory devices.

At present, the reserves of the unemployment insurance

fund are sufficiently ample so that employers are taxed at

minimum rates. We are not told how much of a loss in

unrecouped overpayments would be suffered before any

effect on general employer taxes would result. Thus, the

claimed financial stake is speculative and we don’t know

whether employers will ever feel the effect of this decision,

or at what point it may be felt.

6

Applicants suggest that the implementation of the religf

sought by appellees could result in the imposition of ‘th

highest possible rates in each of the three tax schemes used

to support the unemployment fund. See Applicants’ Motigs

to Intervene, 8-10. If we assume, arguendo, that each of the

three separate taxes supporting the fund was raised to its

highest level, the combined additional revenue to the fun

in a year like 1968 would be 154 million dollars. See Aff.

davit of J. E. McNeil, dated November 19, 1969, paragraph

2(c), attached hereto as Exhibit A. However, appellanty’

statisticians estimate that the maximum amount of over.

payment that would have resulted in the year 1968, if the

challenged statute had not been in effect, would have been

$800,000. See Affidavit of George Roche, dated November

18, 1969, paragraph I(3), attached hereto as Exhibit B. Of

that amount, an average of 64 percent would have been

recovered. See Affidavit of Nicolo Pino, dated July

1970, paragraph E, attached to Appellant’s Jurisdictional

Statement as Appendix C. Thus, the net hypothetical loss

to the fund would have been $288,000 for the year, (36 per-

cent of $800,000). While substantial, it serves to show that

the claims of applicants are exaggerated, because the

amount of actual, unrecouped overpayment would have

been .0019 (nineteen-ten thousandths) of the amount that

applicants suggest would have been needed in increased

taxes to pay for the overpayments, Ceo

Since the amounts by which the individual applicants claim

their taxes would have been increased, were also based on

the highest possible rates, they must be reduced by the same

factor. Thus, in the case of applicant Southern California

Edison, the applicant claiming the largest potential increase

in taxes, the increase would be reduced from a claimed

$434,341.00 to $825.25 a year. ($434,341.00 x .0019) See Affi-

7

davit of C. H. Faulkner, dated August 7, 1970, paragraph

5(b), attached to Applicants’ Motion as Exhibit B. The

alleged increase in the ease of the applicant claiming the

smallest increase would be $ .93 instead of the claimed

$490.00 per year, ($490.00 x .0019). See Affidavit of Ralph

W. Jones, dated August 11, 1970, paragraph 5(b), attached

to Applicants’ Motion as Exhibit F. This appears to indi-

eate that while there may be some increase in taxes, its

significance is highly exaggerated and the only party with a

very substantial interest is the State which must administer

the entire unemployment insurance program.

C. Any Interest Assertable by the Applicants in These Proceed-

ings Is Adequotely Represented by Appellant.

Intervention of Right should not be granted if it is shown

that the applicants’ interest is adequately represented by

the existing parties. Fed. Rules Civ. Proc. Rule 24(a)(2),

9% USCA; See generally, 3B Moore’s Federal Practice

Para. 24.09-[4]; 2 Barron é Holtzoff, Federal Practice and

Procedure Section 597 (Supp. 1969). The question of what

constitutes adequacy of representation was analyzed in

Peterson v. United States (D. Minn. 1966), 41 F. R. D. 131,

which involved a Motion to Intervene by two remainder-

men of a trust in an action to recover federal estate taxes.

The Motion was denied, notwithstanding the fact that the

interests of the plaintiffs and the movants might have been

different in some respects. The court stated: “The con-

trolling rule is that representation is adequate if there is no

collusion between the representative and an opposing party,

if the representative does not have or represent an interest

adverse to the applicant, and if the representative does not

fail in the fulfillment of his duty.” Peterson v. United States

(D. Minn. 1966), 41 F. R. D. 131, 133; accord, Hatton v.

County Bd. of Ed. of Maury County, Tenn. (6th Cir. 1970),

422 F.2d 457.

+ came +

SPOrEReRERENEOEenme

‘s

8

In Hatton the court denied a petition to intervene om

behalf of white parents and students who wished to opposg

a desegregation plan adopted by the Board pursuant to the

order of the District Court. It was found that there wag ap

interest sufficient for intervention but that petitioners

interest did not lack adequate representation because de.

fendants had raised every reasonable defense and the peti.

tioners had made no allegation of fraud, collusion, bad faith

or negligence on the part of the Board. The case at bar ig

directly on point with Peterson and Hatton. In the present

case, there is clearly no collusion between the present

parties; nor does the State have an interest adverse to

applicants; nor can it be said that the Attorney General of

the State of California lacks the competence and the re

sources to adequately represent the interest of applicants?

The cases on which applicants have relied to show inade.

quacy of representation are not applicable to this case. Only

one of these cases, Smuck v. Hobson (D.C. Cir. 1969), 408

F.2d 175, involved a private party attempting intervention

to advocate a private interest in a policy defended by a

public body. Smuck embraced the identical issue raised in

Hatton, supra: whether parents of white children should

be allowed to intervene in a desegregation suit brought

against a school board. However, the reason that interven-

tion was allowed in Smuck was that the defendant school

board in Smuck declined to appeal the lower court decision

that was adverse to the petitioner’s interests. Thus, the

2. There is no suggestion, as in the Cascade case, that the State

and the private parties may differ as to the relief requested. Appli-

cants argue in Part III of their motion that ‘‘In this imstanee,

the questions of law and fact posed by the applicants are identical

to the questions already framed in the original pleadings’’. See

Applicants’ Motion 17 (emphasis added). It certainly seems in-

consistent for applicants to allege that appellants are not adequately

representing their position in light of these circumstances.

9

only way the case could have been heard on appeal would

have been by permitting intervention at the appellate level.

On this basis, the court in Smuck found a lack of adequate

representation and allowed intervention. In the present

ease, of course, the defendant has not failed to appeal.

In Nuesse v. Comp. (D.C. Cir. 1967), 385 F.2d 694, the

Wisconsin Commissioner of Banks was granted interven-

tion to protect the public interest between a private state

bank and the United States. The court found that adequacy

of representation was lacking because the issues involved

the competitive position of all state banks while the original

plaintiff was only concerned with its own competitive posi-

tion. If anything, Nuesse supports appellees’ position in this

case that the State is the only representative capable of

defending the interests of all employers as opposed to those

of individual employers.

In Ford Motor Co. v. Bizanz Bros. Inc. (8th Cir., 1957),

949 F.2d 22, Ford attempted to intervene in an action

brought to enjoin the operation of a railroad. Ford alleged

the injunction would have deprived it of necessary trans-

portation facilities. The railroad was not charged with

representing Ford’s interest in retaining essential railroad

services. In the case at bar, however, the State has the duty

to represent the employers’ interest in the unemployment

insurance fund.

In attempting to differentiate their interest from the

State’s, applicants contend that their interest is in pre-

serving their right to due process before benefits are paid

while the States’ interest is an administrative concern. This

is a distinction in semantics. Appellants have an interest

and a duty to insure fairness to all parties—employers

and employees alike. There simply is no reason to assume

that applicants’ interest is not being adequately represented

in the case at bar.

10

D. Applicants’ Motion to Intervene Is Untimely. :

Intervention at the appellate level is very infrequently

granted. See 3B Moore’s Federal Practice, paragraph 2413

[1] (1969) at 24-526. In United States v. Blue Chip Stamp

Co., (C.D. Cal. 1967), 272 F.Supp. 432, aff’d per curiam syb

nom. Thrifty Shoppers Scrip Co. v. United States (1968)

389 U.S. 580, rehearing denied 390 U.S. 975, the cour

declared :

“A motion to intervene after entry of a final decree

should be denied as untimely in other than the most

unusual circumstances.” 272 F.Supp. 432 at 436,

An examination of the authorities cited by applicants

shows that the unusual circumstances present therein are

far different from the present case. In Automobile Workers

v. Scofield (1965), 382 U.S. 205, petitioners for intervention

were successful parties to a proceeding before the NLRB,

Pursuant to a unique section of the Labor Act, only parties

adversely affected by a decision of the NLRB could appeal.

The result was that, although the successful party was actn-

ally a party to the proceedings below, it could not be heard

on appeal. If the decision of the NLRB were reversed by

the Court and remanded to the Board, and the NLRB

subsequently entered a decision adverse to the former

successful party, such party then became the party ad-

versely affected by the decree and could then re-appeal.

The Supreme Court allowed intervention to the appellate

court to avoid a multiplicity of actions. In the case at bar,

the applicants, failing to seek intervention in the action

in the court below, were never parties to that action. If

they had intervened at the proper time, it would not be

necessary for them to seek intervention at the appellate

level.

11

The two other cases relied on by applicants involved

situations in which the original parties failed to appeal

a judgment adverse not only to their interests, but also

to the interests of the petitioners for intervention, thereby

depriving petitioners of any representation of their inter-

ests at the appellate level. Smuck v. Hobson (D.C. Cir.

1969), 408 F.2d 175; Wolpe v. Poretsky (D.C. Cir. 1944),

144 F.2d 505, cert. denied (1944), 323 U.S. 777. In any

event, none of the cases cited by applicants involved a

case where intervention to the Supreme Court was granted.

Moreover, it is grossly unjust to allow applicants to

claim that they did not have an opportunity to intervene

in the court below. In a recent case it was shown that

petitioners for intervention had been intimately involved

in a suit from its inception but failed to intervene until

one month after summary judgment was granted. The

appellate court denied the motion because it was untimely.

Westward Coach Mfg. Co. v. Ford Motor Co., (7th Cir.

1968), 338 F.2d 627, cert. denied 392 U.S. 927. In the pres-

ent case, applicants were aware of this litigation even be-

fore appellants filed their Answer and Motion to Dismiss.

See Affidavit of Willard Z. Carr, Jr., dated October 23,

1970, 24, attached to Applicants’ Motion as Exhibit H.

Counsel for applicants further attempts to justify their

failure to intervene on the ground that he was not authorized

to proceed until May 5, 1970 and was waiting in reliance

on the possibility that the lower court would dismiss with

leave to amend for failure to join indispensable parties.

Ibid. While applicants might have an excuse for their pro-

crastination if their counsel had not acted promptly despite

authorization, they can hardly use their own neglect in

authorizing counsel to represent them as an excuse for

failing to make a timely motion. The issue is not whether

Pa

12 by

their counsel took timely action but whether his client

did. Moreover, such excuses fail to explain why applicant;

waited until October 30, 1970, to file their motion. As stateg

by their counsel, “although the necessary legal document

for the motion had been prepared, the factual informatig,

gathered with respect to the three original employers was

not received until after the District Court entered its pr.

liminary injunction on May 14, 1970”. Id. at 26. The date

of the latest affidavit by the applicants giving such factua]

information is August 26, 1970. See Affidavit of Willian

L. Parker, dated August 26, 1970, atta~hed to Applicants’

Motion. No reason is given why applicants waited over

two months before filing this Motion.

If the applicants had no one to represent their interest,

or if those purporting to represent such interests had not

provided sufficiently effective advocacy to assure the court

below of a full and competent exposition of the question,

the lateness of the Motion would be more excusable. How.

ever, the present circumstances fall far short of the unusual

conditions necessary to grant intervention of right at the

appellate level, and it would be an ominous precedent

to allow volunteer champions to wait until a question has

reached the Supreme Court before proclaiming their chal-

lenge. Applicants have been given consent by both parties

to submit briefs as amici curiae. This will allow them to

_ have their claims heard without undue interference with

the course of the litigation.

IL.

PERMISSIVE INTERVENTION PURSUANT TO RULE 24(b)

SHOULD NOT BE GRANTED AT THIS STAGE OF THE

LITIGATION

Applicants have failed to raise any issues different from

those raised by appellants. Moreover, applicants have had

18

ample time to seek intervention while this action was

pefore the court below. Even assuming, arguendo, that ap-

plicants may have claims or defenses involving questions

of law or fact in common with this action, a mere general

interest in the outcome of the litigation is still not sufficient

to warrant permissive intervention. 3B Moore’s Federal

Practice, para. 24.10[2] (1969) ; cf. United States v. Alumi-

num Co. of America (E.D. Mo. 1967), 41 F. RB. D. 342, aff’d

per curiam sub nom. Lupton Mfg. Co. v. United States

(1967), 388 U.S. 457; United States v. Chicago Title and

Trust Co. (N. D. Ill. 1966), 242 F.Supp. 56.

Permissive intervention in District Court is subject to

the exercise of the court’s discretion and, in exercising that

discretion, the court must take into consideration the delay

and prejudice to the adjudication of the rights of the parties

that may result. Fed. Rules Civ. Proc. Rule 24(b), 28

USCA. Thus, the requirement of timeliness becomes much

more significant in connection with permissive intervention

because of its discretionary nature. Where the applicants

have nothing new to add and are adequately represented

in the trial court, and intervention would result in addi-

tional delay, the denial of permissive intervention is proper.

See Allen Calculators, Inc. v. National Cash Register Co.

(1944) 322 U.S. 137. This is especially true where applicants

are attempting to intervene as parties appellant. See

McKenna v. Pan Am Petroleum Corp. (5th Cir. i562),

303 F.2d 778.

If there were no way in which applicants could submit

their viewpoint to the Court, it might be different. But

applicants have been given consent by the parties to appear

as amici curiae and are thus assured that their contribution

to the testing of this issue will not be ignored. The adequacy

of this alternative was approved by the court in Crosby

Sinn

14 % 4

Steam Gage and Valve Co. v. Manning, Maxwell andl

Inc. (D. Mass. 1943), 51 F.Supp. 972. There, the

stated:

“Where he presents no new questions, a thi

can contribute usually most effectively and il

most expeditiously by a brief amicus curiae and

by intervention.” 51 F.Supp. at 973.

a+

If this is true at the trial court level, it is of even ru

persuasiveness here. If applicants were allowed toi

vene at this time, they would only be capitalizing on

own tardiness in seeking intervention into this case, ‘

fore, this motion for permissive intervention should

denied.

IV.

CONCLUSION

For the above reasons, applicants’ Motion to Int n

should be denied. q

Respectfully submitted,

Evcene M. Swann

Joun Diaz CoKER

JaMEs M. Kiem

Contra Costa Lecat Services Founpatit

337 Tenth Street, P. O. Box 1669 }

Richmond, California 94801

STePHEN P. Berzon

2648 Stuart

Berkeley, California 94720

Attorneys for Appellees

(Exhibits Follow)

Exhibit A

United States District Court

Northern District of California

No. C-69 350 ACW

Jupira Java and Carrot, H. Hupson, et

al.

Plaintiffs,

vs.

CaurrorNIA DEPARTMENT OF Human ReE-

SOURCES DEVELOPMENT, et al.

Defendants,

AFFIDAVIT

4 J. E. McNeEt., the undersigned, having been duly sworn,

p depose and state that:

/1. Iam Chief of the Accounting Section of the Depart-

\ of Human Resources Development of the State of

lalifornia, and I have custody of the records relating to

mployers’ unemployment insurance tax accounts.

2. I further certify that the best estimate of the dif-

fe: ence in taxes payable by employers, in a year like 1968,

based on the high and low wage bases and tax rates is as

thown in the table below:

p. Taxes payable on

~ (1) $4,100 wage base.............. $596.7 Million

(2) $3,800 wage base.............. $568.7 Million

Difference $ 28 Million

Balancing account taxes payable (using $3,800 taxable

>. wage base) at

a (1) 1.0% general rate............ $191.0 Million

5: —@) 0.8% general rate............ $153.0 Million

Difference $ 38.0 Million

Aon mere ree mnER me

2 Appendix

c. Taxes payable (using $3,800 taxable wage base) on

(1) High rate schedule.......... $377.6 Million

(2) Low rate schedule............. $289.6 Million

Difference $ 88.0 Million

Total Difference $154.0 Million

. =e

I declare under penalty of perjury that the foregoing

is true and correct.

/s/ J. E. McNen.

J. E. McNeil

State of California a

County of Sacramento

J. E. McNeil being first duly sworn under oath, repre.

sents that he has subscribed to the foregoing Affidavit and

does state that the information is true and correct to the

best of his knowledge and belief.

Subscribed and sworn to before me this 19th day of

November, 1969.

/s/ Sypyey R. Jonnson

Notary Public in and for the

State of California

Appendiz

Exhibit B

United States District Court

Northern District of California

No. C-69 350 ACW

JupirH Java and Carrott H. Hupson, et

al.

Plaintiffs,

Vs.

CarFoRNIA DEPARTMENT OF Human Re-

SOURCES DEVELOPMENT, et al.

Defendants,

AFFIDAVIT

I George Roche, the undersigned, having been duly sworn,

do depose and state that:

1. Iam the Chief of the Research and Statistics Section

of the Department of Human Resources Development of

the State of California; and I have, in my possession and

under my control, the statistical records of the said De-

partment of Human Resources Development relating to

unemployment insurance claims filed, eligibility and dis-

qualifications considered and the outcome thereof, appeals

filed to referees of the California Unemployment Insurance

Appeals Board and the outcome of said appeals, and the

amount of unemployment insurance benefits paid by said

Department from the Unemployment Fund.

2. The statistical records of the Department of Human

Resources Development indicate the following claims, ref-

eree appeals, and benefit activity for the calendar year

1968 :

A. The total number of claims filed was 960,180.

PY le

a Appendiz

B. 141,956 of these claims were determined invalid be.

cause the claiman‘s had insufficient wages in their bags

periods. as

C. 818,224 of these claims were filed by claimants why

had sufficient wages in their base periods to file valid claims

D. There were 667,993 issues of eligibility for or dis.

qualification from unemployment insurance benefits whid,

resulted in written determinations by the Department,

E. Of the 667993 issues of eligibility, 401,917 wer

determined by the Department in favor of the claimant

while 266,066 resulted in the claimant being disqualified

from receiving unemployment insurance benefits for one

or more weeks.

F. In 1968, 45,353 appeals were filed to referees of the

California Unemployment Insurance Appeals Board.

G. Referees in 1968 issued 26,509 decisions of which

5,526 were decisions on appeals by employers and 20,933

were decisions on appeals by claimants.

H. Of the 5,526 decisions on appeals by employers, the

decision reversed the determination of the Department and

held in favor of the employer in 2,602 cases or 47 percent

of these decisions. The decision affirmed the determination

of the Department and held in favor of the claimant in

2,924 cases or 53 percent of these decisions.

I. A total of $404.3 million was paid in unemployment

insurance benefits.

3. If benefits had been paid to the claimants involved

in the 2,602 cases in which the employer prevailed before

the referee in 1968, the cost of such benefits to the Unem-

ployment Fund would have been approximately $800,000

based upon a weekly benefit amount of $50 and an average |

duration prior to the referee decision of slightly in excess

of six weeks. |

Appendiz 5

4. The statistical records of the Department of Human

Resources Development concerning the claims and appeals

activity set forth in paragraph 2 hereof for the calendar

years 1965, 1966, and 1967, and additional appeals activity

for the calendar year 1968 is set forth in the table attached

hereto.

I declare under penalty of perjury that the foregoing

is true and correct.

/s/ Georce S. Rocue

George Roche

State of California ai

County of Sacramento ‘

George Roche being first duly sworn under oath, repre-

sents that he has subscribed to the foregoing Affidavit and

does state that the information is true and correct to the

best of his knowledge and belief.

Subscribed and sworn to before me this 18th day of

November, 1969.

/s/ Swyey R. Jounson

Notary Public in and for the

State of California

[Seal]

ete