*1 200 foursquare. In my opinion,
еrror in the trial court’s denial of the sec- the South Da- High ond mistrial motion. State v. See kota Court has never ruled on the (S.D.1980). Elk, 87, 298 89 precise jury.” has, N.W.2d issue of “another It been addressed the State of argument final is that her Clothier’s Michigan Schram, in People v. 98 Mich. rights and statutorial to a constitutional 302, 840, App. (1980). 845 impartial jury were violated. She fair and change of venue motions contends that her granted and that a
should have been new and decided
jury should have heard issue.7
habitual offender granted
A motion for continuance was lag time occurred
and a sufficient between pretrial publicity
much of the and the actu accessory Additionally, pre trial.
al
publicity, although expansive,
trial
was fac
GRATZFELD,
Barbara
Plaintiff
inflamatory
tual and not
or sensational.
Appellant,
Reutter,
State v.
N.W.2d
628-29
v.
(S.D.1985);
Brandenburg,
v.
State
(S.D.1984);
State v. Rei
SUPPLY,
BOMGAARS
Defendant
man,
(S.D.1979).
Fi
Appellee.
provided
nally, Clothier has not
a record
No. 14918.
upon
impar
which we can conclude that an
jury
Pennington
tial
was not found
Supreme Court of South Dakota.
Reutter,
629;
County. See
and remanded.
MORGAN, WUEST, SABERS, JJ.,
concur.
HENDERSON, J., specially concurs.
HENDERSON, (specially concur-
ring). reversing
Inasmuch as this Court is case, aspect of
enhancement it would necessary
not be to address Clothier’s con-
tentions that she was entitled to “another
jury” on charge. the habitual offender See Camp, v.
State Moves Camp, In Moves there nowas any request
record of jury. for another
Here, However, there was. arewe revers-
ing (ten penalty years), enhancement
and thus we need not address the issue and, provides: necessary, jury 7. SDCL 23A-7-7 § an election on a trial shall be made on the habitual offender When an habitual offender information has filed, Any may finding guilty information. trial be had to princi- after a another offense, jury, pal request at the an admission or denial shall be defendant. *2 compensation benefits the Secretary of Labor. We reverse. employed
Gratzfeld was as a for cashier Bomgaars Supрly (Bomgaars) Yankton, Bomgaars South Dakota. an unwrit- ten employees allowed charge items for period a short of time. There procedure unwritten was that to be for charge, was followed each but procedure. Gratzfeld failed to follow that Her termination did not stem from her procedure, failure but, rather, to follow the because she did not repay charges requested. within the time February 17, 1984, On Bomgaars as- manager sistant charge discovered five properly that filled out ac- cording to the charging proce- unwritten manager dure. The assistant all informed that all items on those paid by closing time, p.m., evening. 8:00 that Gratzfeld arrived work approximately at 12:00 day noon that same and was also informed manager’s assistant statement. The five totaled $113.25.
At day, the close of the Gratzfeld in cash on slips. $100.00 On out, way she аlso mentioned that she not have money to fully pay day but would return the next so. Apparently manager, the assistant who busy, did was not hear her. day
Gratzfeld failed to return next remit the owing $13.25 still time, slips. intervening the weather had turned and was she unable to reach Yankton from her rural home. Gratzfeld failed to make paying for remaining charges during next two Bill Legal Froke of East River Services days. Gratzfeld’s next scheduled work Falls, Corp., plaintiff appel- Sioux February 21, began 1984. Gratzfeld lant. working at 8:00 a.m. but not contact Craig Kennedy A. Doyle Kennedy, & anyone management the storе about Yankton, for appellee. defendant and remaining approxi- At $13.25. a.m., mately MORGAN, (on reassignment). called into Gratzfeld his office and dis- Appellant (Gratzfeld) Barbara Gratzfeld her for mer- appeals from a circuit court chandise as directed which affirmed the denial unemployment only Gratzfeld then left the store to return time later to the remainder misconduct
a short was established the evi- owed on the dence in this case. unemployment in- It is clear from a applied for review of the unem-
Gratzfeld
originally
ployment compensation hearing
and was
award-
surance benefits
before the
Bomgaars appealed and
referee that
ed those benefits.
Gratzfeld was fired
reversed, holding
because she could
bal-
*3
owing
since
ance still
ineligible
for benefits
on her
Gratzfeld was
The
appeals
pay
specifically
for the
merchan-
she failed to
asked: “Had
failure,
judg-
paid
This
in his
the claimant
dise as ordered.
the merchandise as
ment,
you
requested,
miscon-
by
[p.m.]
constituted work-connected
upheld
February,
you
on
17th of
duct. This determination
would
have allowed
Secretary
the
of
her to continue in
employment?”
Gratzfeld to
manager replied:
court.
Labor and to the circuit
“Yes sir.
It would
problem.”
have
paid
been no
Gratzfeld
Bomgaars initially asserts that this
outstanding
of the
$100.00
balance
$113.25
jurisdiction
appeal.
court
to hear this
lacks
priоr
leaving
February
on
argued
jurisdiction
Although Bomgaars
Yaroch,
employee
disregard
court,*
issue
the circuit
it has
before
“
ed a series of at least six
‘harsh ...
complied
require
with the notice
review
pick up
full-force commands ...
ments contained within SDCL 15-26A-22.
”
work.’
* Bomgaars jurisdiсtion because Labor’s decision. asserted lack timely appeal Secretary Gratzfeld did not HERTZ, FOSHEIM, C.J., charge slips had Circuit and none Justice, by manager. The Judge, as a initialed acting Court discovery who made the concur. nounced all store that all WUEST, JJ., concur HENDERSON items on thеse part part. and dissent in by closing time. When Claimant arrived SABERS, J., having noon, been member for work at the assistant time action was Court informed Court, participate. hers, to the submitted she them was to closing time. HENDERSON, (concurring Claimant worked the rest of the part, dissenting part). throughout knew did not shе have portion majority I concur in that of the- charges, sufficient funds to but she opinion which concludes that attempt no *4 (Bomgaars) has waived its nonfatal Supply pay charged for in the items the future. jurisdiction by failing comply contention to leaving time, Prior to at closing Claimаnt the requirements with notice of review pay did on the On 15-26A-22. From the remainder of SDCL out, way she also mentioned to the however, opinion, I majority the dissent. manager assistant not she did have notes, majority opinion the an As unwrit- charge to money fully the policy Bomgaars’ ten which existеd allowed but would be in the next to so. The charge a peri- to items for short manager, busy, who did was majority od time. As the to opinion fails hear Claimant. note, when items were removed Claimant, however, go to did the for, being paid from the store without next day store the was not scheduled —she charge prepare other store clerk was to a kept to work and a blizzard her at home. slip for that merchandise and the attempt the Claimant not call store and slip approved was to be and initialed the paying to make for the manager duty. chаrge slips on These were charges husband, and she did not have her kept supposed an office and were town, gone charges who had into the purchased indicate the items and em- go for her. Neither ployee purchasing policy them. This following days store the two nor did she procedures discussed meet- and make call ings (Claimant) and Barbara Gratzfeld charges paying and she for offered no charging proce- aware of the and the good failing do so. On excuse Feb- Claimant, however, dures. took merchan- 21, 1984, ruary regularly Claimant’s next paying dise from the store without day, work scheduled Claimant went following employer’s proce- without work at 8:00 a.m. Between 8:00 and 10:00 dures. a.m., anyone Claimant failed to contact February 17, 1984, On five management charges about or were discovered underneath the cash same, mаking arrangements for the even register. drawer a cash This was not though money she had the remain- proper place charge slips.1 for such ing charges.2 a.m., Bomgaars’ At 10:00 Two of the had “Barb” written manager arrived store after attend- top, but ing meeting. remainder did a called Claim- employee indicate which had made the ant into his and discharged office her from dated, charge. Bomgaars’ employ were not to follow proper procedure several did not indicate the items charging mer- acting Claimant was cashier. She had contrоl over 2. Claimant was not in accordance with register. obligations the cash “duties and employer", to [her] contrary 61-6-14.1(2). to SDCL Bd., Management and for fail- Dakota Water in the first instance chandise (S.D.1984), as directed and we will pay for the merchandise ing to being if, alia, dis- 1984.3 After inter it reversе that decision a short left the store for charged, Claimant rights because it vio- prejudices substantial re- time and then returned provisions is affected statutory lates or slips. mainder owed on of law. SDCL 1-26-36. an error See 61-6-14, unemployed SDCL Under Court, Yaroch, 333 N.W.2d This unemployment in- entitled to person is not employee’s comply failure to with held an they discharged benefits surance employer’s speed up order to the work his misconduct. Matter for work-connected In disqualifying misconduct. constituted White, At Johnson, Lorraine discharge on Febru- the time of Claimant’s (S.D.1983), emрloyee’s we held an iso- had defined mis- ary this Court task lated refusal undertake work follows: conduct as assigned day, to her that constituted mis- meaning of the [within [Misconduct disqualified conduct which her from receiv- compensation is unemployment statutes] Kienast, ing unemployment benefits. evincing such wilful or limited to conduct employ- we held that an disregard employer’s of an inter- wanton employee, a fellow af- ee’s failure to train found in deliberate violations or ests as is so, being ter instructed to do constituted of standards behavior misconduct. work-connеcted right expect employer has case, present discover- employee, negli- in carelessness or his or *5 employee charge slips, totaling over ed five degree as to gence of such or recurrence $100.00, properly completed that were not wrongful in- equal culpability, manifest Claimant, proper place. and not their design, to an inten- tent or evil or show employees, that like all other was informed disregard tional and substantial of paid by be the end of the had to employ- employer’s interests or of Claimant, arrange day. did not obligations to his em- ee’s duties and pay in charge slips the other hand mere ineffici- and did not ployer. On conduct, ency, unsatisfactory full, having failure in despite the entire to make good performance of procure as the result inabili- arrangemеnts such and/or the nec- ty incapacity, or inadvertencies or ordi- essary funds. Nor did Claimant contact or instances, nary negligence in isolated or Bomgaars during with good faith errors or discre- days the next three and she offered no tion are not to deemed “misconduct” be good excuse for so. Claimant (Em- meaning within the of the statute. ample opportunity had mine.) phasis supplied charge slips or make Yaroch, payment. their This she failed to do. The Matter of (citation omitted; (S.D.1983) question properly charge slips brackets original). Legis- рroperly acknowledged, In the South Dakota completed, not essentially lature codified this definition of place and proper not in their Claimant misconduct. 61-6-14.1. See SDCL by closing for the same directed to comply failed to time. Claimant thereafter bar, apрeals such as the case at “our employer’s directive. with her It is obvious review is of the decision of administra by Bomgaars’ Claimant failed to abide clearly tive and our standard is the charging policy. charg- knew the erroneous standard.” Kienast v. Sioux (S.D. ing policy. transcript appeals from the Valley Co-op, 371 N.W.2d 1985). hearing agen referee substantiates this and the We review the administrative cy essentially appeals decision manner referee found it as fact. The the same court, adopted findings as did the circuit South circuit court of Fact, page Appeals Findings 3. See Referee’s of Settled Record at 15. referee, Secretary as did
Labor. is obvious that Claimant knew It Matter of Grievance right she had the and had use Marilyn LEHR, Grievant and However, Claimant failed to Appellant, clearly abide which af- v. responsibility fixed the DEPARTMENT OF LABOR OF unto Certainly, merchandise herself. DAKOTA, STATE OF SOUTH dating indicating and not Employer Appellee. wrong. name thereon was Some of tags charge slips had stuck sales to them No. 15172. only as the indication of the item had charged. been None Court of South Dakota. approved by management person- May Submitted on Briefs 1986. nel. When discover- July 24, Decided ed slips, these unbusinesslike away sight, tucked out of he was notice-
ably upset prompted general
nouncement that the p.m. evening. Claim-
ant, however, comply failed to with her
employer’s directive. comprised All
an intentional and substantial
the employer’s employee’s interests and the obligations
duties employer. findings such
and conclusions and after a review the
record, I am convinced that such find-
ings clearly and conclusions are erroneous. bone,
Pared to the appeal. this is factual *6 facts,
Under is not entitled
to unemployment compensation insurance discharged
benefits as she was for work- White,
connected misconduct.
at 307. I would cir- therefore affirm the
cuit court which affirmed the
Secretary of Labor. hereby
I am to state authorized that Jus- joins
tice WUEST this concurrence
part part. and dissent