Berzins v. Review Board of the Indiana Employment Security Division

439 N.E.2d 1121, 1982 Ind. LEXIS 960
CourtIndiana Supreme Court
DecidedSeptember 15, 1982
DocketNo. 982S347
StatusPublished
Cited by8 cases

This text of 439 N.E.2d 1121 (Berzins v. Review Board of the Indiana Employment Security Division) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berzins v. Review Board of the Indiana Employment Security Division, 439 N.E.2d 1121, 1982 Ind. LEXIS 960 (Ind. 1982).

Opinion

HUNTER, Justice.

This cause is before us on the petition to transfer of Jacqueline S. Berzins, wherein she seeks review of the Court of Appeals’ opinion found at Berzins v. Review Board of Ind. Emp. Sec. Div., (1981) Ind.App., 427 N.E.2d 1121. There, the Second District Court of Appeals affirmed the Review Board’s denial of Berzins’s unemployment compensation claim. We grant transfer and vacate the opinion of the Court of [1122]*1122Appeals for the purpose of resolving a conflict between the various Districts of our Court of Appeals. Ind.R.App.P. 11(B)(2)(c). That conflict concerns the following questions of law:

1. Whether Berzins had a due process right to an administrative procedure reasonably calculated to inform her of the right to be represented by counsel at the referee’s evidentiary hearing; and

2. Whether the failure to so inform Ber-zins per se requires reversal of the Board’s determination.

Claimant Berzins applied for unemployment compensation benefits following the termination of her employment as a housekeeping supervisor at an Indianapolis nursing home operated by Americana Healthcare. The initial and summary evaluation of her claim by a deputy of the Indiana Employment Security Division resulted in the determination that Berzins had “voluntarily left employment without good cause” and consequently did not qualify for benefits.

Berzins then filed a timely request for a hearing before an appeals referee, who conducted an evidentiary hearing on her claim. The record reveals that claimant Berzins appeared pro se at the hearing, while Americana Healthcare was represented by its nursing home administrator Gerald McGowan. Based on the testimony and evidence presented at the hearing, the appeals referee affirmed the deputy’s determination that Berzins did not qualify for unemployment compensation.

Berzins then appealed to the Review Board of the Indiana Employment Security Division. Pursuant to Administrative Rule and Regulation (§ 22-4-17-6)-3 (Burns 1976), the Review Board opted to forego a second evidentiary hearing. Based on the hearing conducted before the referee, the Review Board also found that Berzins had voluntarily left her employment without good cause and affirmed the denial of her claim for benefits.

Berzins then sought judicial review of the Review Board’s decision. Among the contentions she presented to the Court of Appeals was her claim that the failure of the Employment Security Division to advise her of the right to be represented by counsel at the referee’s evidentiary hearing warranted reversal of the Review Board’s decision. In response, the Board argued that whether due process required that Berzins be informed of her right of representation, her substantial right to a fair hearing had been accorded her. The Second District Court of Appeals agreed with the Board’s position and affirmed its denial of benefits. Berzins v. Review Board of Ind. Emp. Sec. Div., supra.

In her petition to transfer, Berzins correctly asserts that a conflict exists between the various Districts of our Court of Appeals with respect to whether a duty exists to inform the parties to unemployment compensation disputes of their right to representation at evidentiary hearings. Likewise, Berzins acknowledges that a conflict also exists with regard to the effect a failure to so advise the parties has on the proceedings. We here resolve these conflicts.

I.

At the outset of our analysis we note that the question before us is not whether the parties to unemployment compensation proceedings have the right to obtain and utilize representation. The due process guarantees of our Constitutions provide that right to citizens in administrative proceedings. U.S.Const. amend. XIV; Ind.Const. art. 1, § 12; Hamm v. Review Board of Ind. Emp. Sec. Div., (1961) 132 Ind.App. 318, 177 N.E.2d 337. Neither, we emphasize, is the question before us whether a party is entitled to be provided with counsel by the Indiana Employment Security Division; due process, not the Sixth Amendment guarantee of counsel, is at issue. See, generally, Goldberg v. Kelly, (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

The precise question before us is whether due process requires the Employment Security Division to utilize procedures reasonably calculated to inform a party of the [1123]*1123right to be represented by counsel at evi-dentiary hearings. The majority of the Court of Appeals’ Districts which have addressed the question has answered it in the affirmative.

Both the First and Fourth Districts have held that due process minimally requires that notice of the right of representation must be provided to parties prior to the referee’s evidentiary hearing. Sotak v. Review Board of Ind. Emp. Sec. Div., (1981) Ind.App., 422 N.E.2d 445 (First District); Leon-Roche v. Review Board of Ind. Emp. Sec. Div., (1981) Ind.App., 419 N.E.2d 801 (Fourth District); Felders v. Review Board of Ind. Emp. Sec. Div., (1981) Ind.App., 419 N.E.2d 190 (First District); Foster v. Review Board of Ind. Emp. Sec. Div., (1980) Ind.App., 413 N.E.2d 618 (First District); Sandlin v. Review Board of Ind. Emp. Sec. Div., (1980) Ind.App., 406 N.E.2d 328 (Fourth District). The Third District, however, relying on Paoloco v. Commonwealth, Unemp. Bd. of Rev., (1973) 10 Pa.Cmwlth. 214, 309 A.2d 594,1 has held that due process does not “require that the referee tender such advice” at the unemployment compensation hearing. Walker v. Review Board of Ind. Emp. Sec. Div., (1980) Ind.App., 404 N.E.2d 1363, 1365. The Second District has not adopted a position; in the instant case, it resolved Berzins’s claim on the basis that Berzins’s substantial rights to a fair hearing had not been violated, notwithstanding the fact that she had not been informed of the right to be represented. Berzins v. Review Board of Ind. Emp. Sec. Div., supra.

We adopt the position taken by the First and Fourth Districts. We hold that due process does require some form of procedure reasonably calculated to provide notice to employers and claimants of the right to be represented at evidentiary hearings conducted by the Employment Security Division.

Both this Court and the United States Supreme Court have recognized that due process is not a fixed and immutable concept unrelated to time, place, and circumstances. Rather, due process is the product of human experience, reason, and the past course of decisions; it is a flexible concept which demands such “procedural protections as the particular situation demands.” Wilson v. Review Board of Ind. Emp. Sec. Div.,

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Berzins v. REVIEW BD. OF INDIANA EMP. SEC.
439 N.E.2d 1121 (Indiana Supreme Court, 1982)

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