Byrоn PERRINE, Plaintiff and Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, and Harding County (S.D.) School District, Defendants and Appellees.
No. 16072.
Supreme Court of South Dakota.
Decided Nov. 2, 1988.
432 N.W.2d 156
Considered on Briefs Aug. 29, 1988.
Drew C. Johnson, Aberdeen, for appellee, S.D. Dept. of Labor.
Thomas E. Carr, Belle Fourche, for appellee, Harding County School Dist.
WUEST, Chief Justice.
Byron Perrine (Perrine) appeals a circuit court order dismissing his appeal from a determination by the South Dakota Department of Labor (Department) that Perrine was ineligible for unemployment compensation benefits. We affirm.
Perrine was employed as thе superintendent of the Harding County School District (District) for the 1986-87 school term. On December 12, 1986, Perrine‘s contract with the District was terminated and he subsequently filed for unemployment compensation benefits pursuant to
After an investigation of Perrine‘s claim for benefits, the Department initially determined that Perrine voluntarily left work with good cause and that he was eligible for unemployment compensation benefits. This determination notice was mailed to all parties on January 15, 1987. Because this notice was sent to Perrine‘s previous employer and not to the District, the Department issued a corrected determination notice dated January 26, 1987. This corrected notice again held Perrine eligible for benefits.
The District appealed the corrected determination notice on February 4, 1987. Thereafter, the Department notified Perrine of the appeal and requested his response to certain documents accompanying the District‘s notice of appeal. Perrine complied with the Department‘s request by submitting additional documents and material on March 2, 1987.
After reviewing the additional documentation supplied by both parties, the Department issued a redetermination notice dated March 2, 1987. This redetermination notice held Perrine ineligible to receive unemployment compensation benefits for reasons of misconduct, incompetency and neglect of duty. The notice, like the previously issued determination notices, contained the following statement in the upper right hand corner:
APPEAL RIGHTS:
This determination is final unless an appeal is filed by the claimant or any other interested party within NINE (9) days after mailing this notice.
No appeal was filed by Perrine or by anyone on his behalf until March 16, 1987. The Department refused to accept Perrine‘s appeal since it was not timely filed. The Secretary, concluding that appeal times are jurisdictional and that Perrine‘s appeal was untimely made, upheld the Department‘s decision and оrdered that Perrine‘s appeal be dismissed. From the Secretary‘s adverse decision, Perrine appealed for review to the circuit court. After a hearing, the circuit court also determined Perrine‘s appeal to be untimely and affirmed the Secretary‘s order.
Perrine now appeals to this court claiming that the Rules of Civil Procedure, particularly
The procedure for filing, determining and appealing unemployment compensation benefits is delineated in
Unless the claimant, ... within nine days after notice has been mailed to his last known address, ... files an appeal from the adjusted determination, such determination shall be final ... and benefits shall be paid or denied in accordance therewith.... (Emphasis supplied).
In support of his contention that the nine-day period in
Although the present case is factually similar to Madsen, we find the two cases distinguishable. Madsen dealt with a worker‘s compensation claim under
Instead, we adhere to the general rule of law regarding appeals within an agency which states:
Proceedings for appeal or review must be instituted within the period of time prescribed by statute, since such statutory provision is mandatory and jurisdictional. A failure to comply with the statutory requirements subjects an appeal to dismissal. In the absence of specified conditions, the requirement may not be waived by the administrative appellate tribunal, or by the opposing parties by agreement or failure to object, and an assumption of jurisdiction by the appel-
late tribunal on its own motion must comply with the statutory time limitations.
81 C.J.S. Social Security and Public Welfare § 281(b) at 590-91 (1977). This rule was adopted by the North Dakota Supreme Court in Amoco Oil Co. v. Job Service North Dakota, 311 N.W.2d 558 (N.D.1981). In Amoco Oil, Amoco sought an intra-agency appeal of a determination granting unemployment compensation benefits to striking workers. Amoco‘s request for review, however, was denied on the basis that it was untimely and that the decision of the appeals referee had become final. The court rejected Amoco‘s contention that Rules 6(a) and 6(e) of the North Dakota Rules of Civil Procedure4 were applicable in computing the twelve-day pеriod within which Amoco‘s appeal was to be filed. The court stated:
We are not aware of any rule or case law which provides that the rules of civil procedure apply to proceedings within an agency or intra-agency appeals as distinguished from appeals from the decision of an agency to the district court. We have held that the court-adopted rules apply to appeals from an administrative agency to the district court, and for that matter, appeals from the district court to the Supreme Court; but no case has been called to our attention and our research does not reflect a decision of this Court which has held that the Court-adopted rules of procedure apply to intra-agency appeals and procedures.
Amoco Oil, 311 N.W.2d at 562. See also Buzick v. N.D. State Highway Com‘r, 351 N.W.2d 438 (N.D.1984).
We find the reasoning of the North Dakota Supreme Court in Amoco Oil persuasive.
Perrine‘s second contention that the Department should have held an initial hearing on the District‘s appeal, even though the Department‘s redetermination in the District‘s favor rendered its appeal moot, must also fail. Under
For the foregoing reasons, the judgment is affirmed.
MORGAN, SABERS and MILLER, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
Is it in keeping with good common sense and civil procedure that a department оf
- A certain appellate procedure for worker‘s compensation; and
- a totally different type of appellate procedure for unemployment compensation?
Madsen, cited by the majority opinion, is compelling precedential authority in this Court and footnote 3 of the majority opinion establishes the timeliness of Perrine‘s appeal. We should reaffirm Madsen, factually similаr, and decree that three days is thereby added to the nine-day statutory period prescribed by
If my dissent prevailеd, this case would be remanded to the circuit court for a correct decision; ultimately, then, Perrine would be heard on the merits and not be defaulted by state government administrative negligence—yes, because it—government—failed to prescribe a rule under
Appellant is defeated by a technicality. This should not be. Perrine‘s case should be decided on the merits. For a сollection of cases supporting my viewpoint on statutory construction pertaining to appeal rights, see 3A Sutherland Stat. Const. § 67.08 (4th rev. ed. 1986). These treatise writers conclude by expressing: “Any doubt as to the proper construction of statutes regulating appeal should be resolved in favor of right of appeal.” Supra § 67.08, at 371 (footnote omitted). Two other authorities I wish to rely upon:
- Red Bird v. Meierhenry, 314 N.W.2d 95, 96 (S.D.1982), which held “the unemployment compensation statutes should be liberally construed in favor of the claimant to afford all the relief the legislature intended to grant.”
SDCL 2-14-12 , which in pertinent part reads: “[T]he law of this state ... and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice.” (Emphasis added.)
It appears the majority‘s holding accomplishes the opposite; this opinion strictly construes the “proсeedings” (the procedural law) and the statutes pertaining to relief (the substantive law); due to our Madsen decision, it creates unpredictability in the application of the three-day mailing rule; therefore, I respectfully dissent.
Notes
In computing any period of time prescribed or allowеd by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served by mail, three days shall be added to the prescribed period.