*1 Fаlls, Doug Cummings, Sioux for claim- appellant. ant and STARK, Claimant Appellant, and Woods, Fuller, J.G. Shultz Shultz & P.C., Falls, employer Smith Sioux and appellee, appellee. insurer and & MUNCE BROS. TRANSFER STORAGE, Employer and
Appellee, SABERS, Justice. (Stark) appeals Gerhardt Stark from a judgment dismissing his Hartford, Appellee. Insurer and affirm. We No. 16845. Supreme Court of South Dakota. FACTS Secretary of Labor affirmed the Di- Considered on Briefs March 1990. Management vision of decision Decided Oct. deny lump sum settlement of Stark his compensation against workers’ claim his employer, Munce Brothers Transfer & (Munce). Storage Stark was served with by May the order mail on 15, 1989, May Stаrk filed a appeal with the circuit court and made employer and service However, insurer. failed to serve a Stark appeal upon by ment of Labor as SDCL 1-26- provides, 31 which agen- An [from cy to circuit shall be taken court] serving appeal upon the ad- verse which same, copy, proof certified in the office of the clerk of such service county in the venue сourts of the set, thirty days within agency served notice of the after the added). (emphasis final decision.... a motion dismiss the cir Munce filed court on cuit June court lacked basis that the circuit a result оf Stark’s failure to serve notice of the Department of Labor. On June 30-day period for ser five after ended, served the notice of vice had Stark of Labor. appeal upon Desрite Stark’s failure to SDCL 1-26-31. Labor, the serve the deputy director of the Division record and Management indexed its *2 copy transmitted it to the circuit court within appeal of the notice of be filed with thirty days after service of the notice of simply the commissioner assists the com- appeal to circuit court. SDCL 1-26-33. in carrying missioner adminis- The appeal circuit court dismissed the trative functions. jurisdiction lack of matter and not (1982). 175.101 § mandatory language ed that the of SDCL appeal Id. at dealt with an Olson with- Depart 1-26-31 service on the in agency and not an ment of Labor.* appeal (executive) from an administrative agency (judicial) to a circuit court.
DECISION
The
Stark relies on
v. Midwest
issue here is whether the
Olson
Print-
sub
Co.,
(Minn.1984)
ply filing requirements. with the We partment of Labor. The statute is clear concur in this determination. Midwest mandatory language. and uses Matter of Printing and American Mutual cannot Intern., Inc., Groseth appeals show in the (S.D.1989). process due to Olson’s failure to file a appeal of the notice of Contrary argument, with the to Stark’s
commissioner. The appeal that a notice of of La- * granted language the circuit court of Labоr. The dismiss, noting motion to in its letter decision: agency of the statute makes notice to the mandatory. appellant give Since the failed to proce- The South Dakota administrative notiсe to the require within the time dures SDCL 1-26-31 that an "[upon] required by be served the adverse frames has not that rendered the decision.” perfected been and the Circuit Court lacks appellant served a Notice of [Stark] to review the deci- Insurer, Appeal Employer [Munce] sion. however, Appeal failed to serve a Notice of bor does more than order the error? Cannot the of this Court recently recognize functions. As we that the Department of Labor is indicated, aggrieved not an party? notice of serves as Said standing has no partici- transfer of and is not from thе *3 pating appeal. Rather, executive this judicial branch to the the branch. Groseth, shoe is supposedly pinching, See N.W.2d at 231. As a result, appellees the hollering are this case “ouсh” for the inherently is different than Department. It is obvious that the func- involved an intra-agency ap- Department tions of the pure- Labor are Lack of to Munce has little ly man, administrative. working This bearing notify or no on Stark’s failure to through lawyer, timely filed his notice the of Labor of the transfer of and served his statement of is- judicial branch. More- sues on pursuant to SDCL 1-26—31.- over, way negated error is in no Stark’s Thereafter, he timely requested a tran- Management’s the Division of Labor and script pursuant to SDCL 1-26-32.2. Error portions of the administrative (of insignificant impact), was but not responsibilities. The circuit court’s dаmaging such a prejudicial or mistake had not been that it working should cause this man an invoked and the circuit court was correct in opportunity appeal. The failure to noti- dismissing appеal. the fy (3) the said was three to six Affirmed. (6) late, days depending upon how the time is In my opinion, calculated. the decision MILLER, C.J., and WUEST and of the circuit court and the MORGAN, JJ., concur. acutely of this state is insensitivе and harsh to If this man. the notice HENDERSON, J., dissents. (not you, mind a sub- HENDERSON, (dissenting). appeal) stantive of his was 5 or 6 late, so what? Our decision this judicial jolt This is another for the work- case is based gobble- ing people of emanating South Dakota de-gook! reading A of this record discloses from specifically, and more for July that Stark, one of their ranks. This consecutively of Labor had assembled and upon hypertеchnical decision is based con- pages numbered the of all documents and involving struction of one an prepared alphabetical an attached rubric, peal which under clоse and fair ex- chronological index. Said filed amination, does not make sense. Thus, it on all work was True, it is settled law in Dakota South done; barn; hay was in the all that failure to file go. camped But—the jurisdictional is a flaw dismissal technicality. Opposing parties down on a appeal. of the Kulesa v. (appellees), any have not demonstrated (S.D. 1979); Safety, Public prejudice whatsoever. It reminds me of Painting Madsen v. Contrac Preferred game played the old “tee-hee” we tors, S.D. youngsters got- where we taunted “We patently distinguish But—-these cases are Again, repeat: working cha!” I This mаn This case is not about able because: appeal; filed his he filed and appeal. timely filing issue of the notice of appeal; served his statements of issue on Filing independent cоncept; request transcript. he filed a for separate concept. thereof is a Under SDCL 1-26-33 (the justice, Department) In name of should not the said was able to (and did). So, (who appellеes required duty were served within the stat- do its as we utory proper given time limit and in a famous adver- witnessed—on television them) required to demonstrate how the beef?” The an- unto be tisement: “Where’s they prejudiced by are this de minimis It isn’t there. swer is: day A three to five tardiness on notice Court which held that Compen- Workmen’s (not filing) working has cost this man his sation statutes are to be liberally construed absolutely vaulting This is form purpose to effectuate the legis- basic over substance. No was lative will? Seems to me that we have held appeal process. is, occasioned in the There that the Workmen’s Act is simply, no fatal flaw. would follow the remedial, and liberally should be construed reasoning in the decision in Minneso- purposes, to effectuate its to aid the in- ta, cited and which the jured workеr. for Schwan majority now dances and does a deft Premack, sidestep Moreover, to avoid its rationale. premise, On this cardinal hunk- we Olson, appellant neglected to file a yeаrs. ered down legion. The cases are *4 with the commissioner Now, in this read our recent com- (liked here). Yet, unto the pensation cases. You will see the winds of Supreme Minnesota held that Court fаilure change blowing across the South Dakota to do so did not warrant a dismissal of the prairie, from the borders of Minnesota and The Minnesota Iowa to the Black adjacent Hills
held, inter alia: Wyoming state line. that a of the notice Restaurant, Lawler v. Windmill be filed with the Commissioner (S.D.1989),Henderson, J., dis- simply assists the in carry- Commissioner senting. administrative functions. Accordingly, I dissent. Minnesota, Not unlike an administrative func- assembling
tion also in the record. All go; ready. all was gear.
inwas So—“Where’s the beef?”
would follow the Minnesota rationale. And
say, what of the dozens of cases in this