Kaylor v. Department of Human Resources Development

[734]Opinion

DEVENE, P. J. Appellant, having been discharged from his job with Pacific States Steel Corporation and having been denied unemployment insurance by the Unemployment Insurance Appeals Board (hereafter “the Board”), sought a writ of mandate to compel an order for payment. The writ was denied. He appeals.

Kaylor was cited for driving a motor vehicle without an operator’s license. It was discovered that a bench warrant had been issued for his arrest for failure to appear in court on another traffic violation. After trial, he was sentenced to pay a fine of $120 or to serve seven days in jail. Although he had some earned wages and asked his supervisor to provide him with funds for bail or to pay the fine, he was.unsuccessful. He was unable to pay the fine. So he spent the seven days in jail. Once his jail term had started, the referee found, he was not allowed to telephone. The company knew where he was, so that the provision in the contract allowing termination of employment upon three days unreported absence is unavailable.1

The decisions of the referee and of the Board denying benefits were based on Unemployment Insurance Code section 1256.1, which reads, in pertinent part: “(a) If the employment of - an individual is terminated due to his absence from work for a period in excess of 24 hours because of his incarceration and he is convicted of the offense for which he was incarcerated or of any lesser included offense, he shall be deemed to have left his work voluntarily without good cause for the purposes of Section 1256.”2

But serving of the sentence could have been avoided under the ruling of In re Antazo, 3 Cal.3d 100, 115 [89 Cal.Rptr. 255, 473 P.2d 999]. Compulsion to serve a sentence which is imposed only in lieu of the primary penalty, a fine, which cannot be paid because of the indigence of the defendant constitutes an invidious discrimination in violation of the equal protection clause of the Fourteenth Amendment. Respondents argue that appellant brought the imprisonment on himself, not just because [735]he could not pay the fine, but because he committed the original offense, wherefore his absence was not “due to” his impecuniousness only, but also to his failure to obey the law. But this was so with Antazo, too. He had committed the crime of arson; his imprisonment would have been avoidable if he had not broken the law. His incarceration would have been avoidable, however, if he had been able to pay the fine and a penalty assessment. We see no distinction, so far as invidious discrimination between the affluent and the impoverished is concerned, between the incarceration itself and the denial of the unemployment compensation provided by law, resulting from the incarceration. Both were acts of agencies of the state.3