*1 133 127, (1969). 24 L.Ed.2d 110 As 90 S.Ct. Hermandson,

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. 173 F.2d 794 1949).

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, 295 N.W.2d 743 tion for Permit No. Bd., Comp. Pa. employment 32 Cmwlth. (S.D.1980). to 1-26-36 No reference SDCL (1977), justified its denial brief, specific appellant’s is made in and no a unemployment benefits to such claim- or contra- agency action the in violation following language. ant with the However, vention of that statute is noted. suggests While the instant record that by appellant, light in of the statutes cited parental duty Liebrum’s constituted a agency’s the deci- apparently she considers 1-26-36(1). substantial and reasonable basis for re- sion in violation of SDCL positions, the offered it does not defining good cause There is no statute positive reveal the conduct indicative of job to a and we have for failure for good particular, faith. Liebrum ad- 61-6-15 interpret not had occasion to SDCL mitted that attempt she did not to secure jurisdictions, Looking before. then to other babysitting services. Because there is no developed the Pennsylvania we find has suggestion attempt that an to secure such following definition: services would have or pro- been useless ‘good We must also remember onerous, hibitively say we cannot that the Act, cause’, is a being undefined in the good-faith requirement of Trexler has flexible term and therefore not amenable We general rigid or formulas. In- been met. therefore conclude that to rules stead, meaning inapposite its must be deduced from Trexler is and that Liebrum manner that is the facts of each case in a did not refuse for cause. consistent with the Act’s fundamental Com., Similarly Unemployment Brink v. employes purpose, which is to insure that Bd., Comp. 392 A.2d 338 Pa.C. through no fault unemployed who become (1978), affirmed a denial of benefits to a provided with some sem- of their own are parent requiring who refused a offer security. of economic Viewed blance Saturday parent work. The claimed that setting ‘good may cause’ cover rea- this accept she could not the because it was employ- extraneous to the sons which are impossible babysitter to find a on Satur- strictly personal to the claim- ment and Liebrum, days. justi- As in the Brink court ant, however, person- provided, that such fied its decision on the lack of a faith real and substantial al reasons involve showing. compel the decision circumstances which petitioner presented In the instant case ‘good work and rest on to refuse suitable absolutely no evidence as to what efforts faith, in this con- faith.’ as used ‘[G]ood babysitter. she to secure a While made text, part positive includes conduct on impossible that it was petitioner did state of the claimant which is consistent babysitter her for to secure a Satur- self- genuine desire to work be testimony as to days, presented she no supporting.’ contacted, many babysitters Wage she how considerations are also addressed in arrangements as to what other child care SDCL which reads: attempted to make. it she While Notwithstanding any provisions case, considering peti- the fact that close of this title no work shall be deemed days in tioner had several which to secure suitable and benefits shall not be denied babysitter, we do believe not it under this title any eligible to otherwise was unreasonable for the Bureau of Em- individual for refusing accept to new referee, ployment Security, and the any work under following condi- Unemployment Compensation Board of tions: require produce Review to claimant wages, hours, or other condi- something more than her mere assertion tions of the work offered are substan- impossible that it was a babysit- secure tially less favorable to the individual Saturdays satisfy ter for than those prevailing for similar work requirement. faith in the locality[.] Id. 392 A.2d at 340. *4 Again, there is no evidence in the record case, Turning to the we that per hour “substantially $3.35 is less agree Pennsylvania with the courts that the appellant favorable” to wages than for sim- fulfillment of responsibilities and ilar work in Sioux Falls. basis, duties is a substantial and reasonable Therefore, agency’s decision was not cause, good i.e. refusing accept job. for to a in violation of statutory provisions. We However, appellant presented no evidence accordingly affirm the order of the circuit hearing at the that it impossible was for her court. to secure care for her child while she worked on Saturday. We therefore hold HENDERSON, J., properly was concurs. denied unem

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