*1
133
127,
(1969).
we stated State (1969): 169 N.W.2d
S.D.
Officers are not to know prove guilt, only
facts sufficient to but facts,
knowledge of sufficient to show
probable cause for an arrest or search. practical
These are factual and consid- everyday
erations of life on which rea- men, prudent legal
sonable and not
technicians, act. (8th Sager,
See Anderson v.
Cir.
Trooper Bender knew that defend only
ant had been involved in an accident
minutes before the officer arrived at the sitting
scene. He observed defendant be wheel
hind the of the wrecked vehicle. De apparent concerning
fendant’s confusion
the direction he traveling, coupled had been breath, gave the odor of alcohol on his
Trooper Bender sufficient cause to believe driving
that defendant had been while un Accordingly,
der the influence of alcohol. magistrate should have held that
arrest was have valid should thus not
suppressed the results of the blood test. reversed, appealed
The order from is
the case proceed- is remanded for further
ings. Matter of the APPEAL FROM
FINAL DECISION OF the SOUTH DA LABOR,
KOTA DEPARTMENT OF
UNEMPLOYMENT DIVI INSURANCE
SION, FICKBOHM, Appeal Laura FOR
No. C-2587.
No. 13677.
Supreme Court of South Dakota. May
Considered on Briefs 1982. Aug.
Decided 1982.
(1)the job required Saturday work day care was not available on Saturdays for her son; (2) infant job she understood the was not full-time job, and she needed a full-time paying hour, per more than to make $3.35 meet;1 (3) ends she prep did not like decision, work. The referee’s by affirmed Labor, the Secretary of appellant was that was properly denied unemployment benefits because she refused a referral to suitable work without Appellant cause. ap- pealed the agency’s decision to the circuit appeal court. This is from the circuit court’s order affirming the agency’s deci- sion. We also affirm. 61-6-15 depart-
SDCL states: “If the unemployed ment finds that an individual failed, has without cause ... apply for available suitable work when so directed by department the . . . such claimant shall Joseph Rimlinger, G. East Legal River be denied appellant The issues benefits[.]” Corp., Falls, Services Sioux for appellant appeal raises on are whether child care re- Laura Fickbohm. sponsibilities constitute cause for re- Julie Johnson, M. Sp. Gen., Asst. Atty. job job for a and whether a Aberdeen, for appellee State of D.S. pays approximately is suitable if it 10%less previously than the claimant earned. FOSHEIM, Justice. Laura (appellant), Fickbohm a single par- The standard of review in this Court ent, was employed by Litton Microwave in is SDCL which states: Falls, Dakota, Sioux South on the assembly The court shall give great weight to line. She worked from 7:00 a. m. to 3:30 p. the findings made and inferences drawn m., Monday through Friday, 40 per hours by an agency questions of fact. The week, hourly at an wage of Appel- $3.75. court may affirm the decision of the lant was laid off job from this on January agency or remand the case for further 5, 1981, whereupon applied she for unem- proceedings. The court may reverse or ployment benefits. On January modify the decision if rights substantial Job Service notified job of a open- of the appellant have been prejudiced ing, paying hour, per $3.35 for a combina- because the administrative findings, in- tion cashier and prep worker at a cafe. ferences, conclusions, or decisions are: Although appellant had experience in res- (1) In violation of constitutional or work, taurant she refused the referral. statutory provisions; Because refusal, of that the Benefit Section (2) In excess of the statutory authority of the Department South Dakota of Labor agency; denied her unemployment benefits. Her (3) upon Made procedure; unlawful appeal of this denial resulted in a hearing (4) by before a referee Affected law; of the South Dakota error of De- partment of Labor. At that hearing appel- (5) Clearly light erroneous in lant stated she refused the referral because: entire record; evidence in the or hearing appellant 1. At was informed because after having she said it was to do with referee that the job. referral prep was for a Saturdays full-time just you work and right I know Appellant stated that she was under the im- there had decided because I’ve never had to pression was not full-time but that “.. . [my weekends since I’ve had so and son] you really listening know wasn’t that close I don’t want to start now.” Com., Unemployment Comp. Bd., Trexler v. or charac- Arbitrary capricious or (6) clearly of discretion by abuse 27 Pa.C. terized exercise of discretion. omitted).
unwarranted
(citations
findings
its own
need not enter
A court
Trexler decision held that
The
may
law but
of fact and conclusions
responsibilities
do
substantial and
findings
affirm, modify or reverse
refusing
job.
to take
reasonable basis for
agency as
by the
and conclusions entered
*3
in Trexler was
The claimant
held to be
circuit court
judgment. The
part of its
unemployment
to
benefits because
entitled
the amount and man-
costs in
may award
good
secure new
of her
faith effort
to
em-
chapter
in
15-17.
specified
ner
ployment. Subsequent Pennsylvania unem-
agency’s decision in
This court reviews the
ployment
dealing
cases
with refusal to ac-
court,
the circuit
unaid-
the same manner as
cept
job
parental responsibil-
a
because of
that the circuit court’s
by presumption
ed
a
consequently
have
on
ities
centered
whether
the
was correct.
In the Matter of
decision
good
the claimant’s refusal was made in
Applica-
System
Lincoln Rural Water
South
Com.,
example
faith. For
Liebrum v.
Un-
4300-3,
ployment benefits showing because her of WOLLMAN, J.,C. concurs specially. good cause lacked good evidence of faith. MORGAN, JJ., DUNN and issue,
The final dissent. whether a is suitable if it pays approximately 10% less WOLLMAN, Chief Justice (concurring than the prior earnings, claimant’s address specially). es suitability of work under SDCL 61-6-16. Unlike the situation presented That that was determining statute reads: “In wheth to us in Red Bird any Meierhenry, er or not work is suitable for an N.W.2d indi vidual, (S.D.1982), as the department majority opinion points shall consider . .. out, prior his ... there is no earnings[.]” The definition of “good record does cause” not reveal as that term per wage whether the hour is used in SDCL 61-6-15. The $3.35 tips. Department included argues We realize that even a of Labor 10% that we should wages reduction in look undoubtedly provisions would to the of SDCL 61-6-16 and appellant’s strain meager budget. How 61-6-17 as limitations upon grounds ever, appellant presented no evidence to that would constitute cause for re substantiate her claim that she and her son to for accept suitable could not live on the wage. offered work.*
* SDCL 61-6-16 Notwithstanding any reads as follows: provisions of this determining any title no work shall In be deemed whether or not work suitable and is individual, department benefits suitable for an shall not be shall denied under this title to any degree eligible consider the refusing of risk involved otherwise to his individual for to health, safety, morals, physical accept any and his following fitness new work under prior training, experience prior and his and conditions: earnings, length unemployment pros- (1) position his and If the offered is vacant di- due pects securing customary rectly strike, lockout, for local work in his to a or other labor occupation, dispute; and the distance of the available hours, wages, from his residence. or other conditions of SDCL 61-6-17 substantially reads as follows: the work offered are less favor- DUNN, Justice construing (dissenting). statutes similar to SDCL 61-6-15, 61-6-16, and the Su- I would concur with the majority that the Pennsylvania preme Court of held: parental responsibilities fulfillment of and 402(a) study A careful has con- § duties constitutes cause for refusing to “good vinced us that cause” and “suitable accept a under SDCL 61-6-15. separate are and work” intended be would, however, reverse and remand this concepts, determining distinct and that in case for a determination of whether appel- unemployment compensa- eligibility for lant made a faith effort to secure care separate tion each must be considered for her child while she worked on Satur- from It is well apart the other. days. settled, statute, construing in a ef- The good adopted faith test by major- given fect if its possible, shall be all in ity hardship this case works a appel- a provisions impossible give .... It lant. requires This standard the establish- general “good cause.” The definition of ment of a factual record at the time of the meaning must of those words be deter- hearing; requirement appellant was not mined each case from the facts of that aware of at the time of her hearing. The “good ease. We are convinced that hearing in this case was conducted before cause” was intended to cover reasons referee who ap- elicited information from personal employee which are to the pellant questions. in the form of Appellant they to the if employment extraneous represented was not by (although counsel are, Superior as said the learned Court counsel is not at hearings), such Unemployment Comp. in Sturdevant given was not the opportunity to call wit- *5 Case, Pa.Super. 45 A.2d testimony nesses and concerning tri- imaginary, “Real not substantial not procure faith day care facilities for whimsical, fling, reasonable not circum- child, and, her more importantly, was not compel stances the decision to [which] even asked the referee about her efforts employment” leave or to refuse suitable to find child care. addition, “good work. But cause” just hearing There was no factual held on interpreted must be so the funda- the issue of appel- faith efforts of purpose legislation mental shall lant to obtain suitable care for her child on destroyed. not be Saturdays. undoubtedly This was due to Barclay Unemploy. Comp. v. Bd. White Co. rejects outright the fact that the State Rev., Etc., 339- Pa. responsibilities” “fulfillment of (1947). test to show cause for refusing em- Pennsylva- We have elected to follow the ployment. The to a entitled approach. legislature nia should de- hearing finding on this issue I interpretation keep- cide that our is not in would reverse and remand the case for this intent, ing legislative then it will be a purpose. simple enough job legislature for the I am authorized to state that Justice define, it in the statute under consid- as did joins MORGAN in this dissent. Meierhenry, supra, eration in Red Bird cause,” “good as that term is used in SDCL
61-6-15, in a more restrictive manner than opinion.
we have done in this agree majority opinion with the not warrant a
the record before us does department’s
reversal of the decision. prevailing resign joining any able to the individual than those from or refrain from labor locality; organization. for similar work in the If, being employed, as a condition of join individual would be or to