Department of Employment v. Drinkard

560 P.2d 1312, 98 Idaho 222, 1977 Ida. LEXIS 352
CourtIdaho Supreme Court
DecidedFebruary 3, 1977
DocketNo. 12164
StatusPublished
Cited by3 cases

This text of 560 P.2d 1312 (Department of Employment v. Drinkard) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Employment v. Drinkard, 560 P.2d 1312, 98 Idaho 222, 1977 Ida. LEXIS 352 (Idaho 1977).

Opinion

BISTLINE, Justice.

The Industrial Commission held itself to be without jurisdiction to entertain appellant Drinkard’s appeal to it from a Department of Employment final decision adverse to Drinkard. The Commission concluded that Drinkard’s claim for review was filed beyond the 14-day jurisdictional limit mandated by I.C. § 72 — 1368(f). We hold that the claim for review was timely filed.

The Department of Employment (Department) determined, after investigation by its Status Examiner, that Drinkard was a “covered employer” (I.C. § 72 — 1315) for unemployment insurance purposes, and that he was thus required to file quarterly reports and pay an employer’s contribution. Drinkard appealed this determination within the Department to an Appeals Examiner. The Appeals Examiner issued a decision affirming the earlier determination.

The decision of the Appeals Examiner is a written document. Above the signature of the Appeals Examiner the following appears: -“Datea at Boise, Idaho, this 9tn day of July, 1975.” The top half of the first page of the decision is a standard printed form used by the Department to inform as to further appeal rights and procedures. This form reads, as follows:

THIS DECISION WILL BECOME FINAL FOURTEEN (14) DAYS FROM THE DATE OF MAILING UNLESS A REQUEST FOR REVIEW IS FILED WITH THE INDUSTRIAL COMMISSION WITHIN THAT TIME. A REQUEST FOR REVIEW MAY BE FILED IN LETTER FORM OR ON FORMS OBTAINED FROM A REPRESENTATIVE OF YOUR LOCAL EMPLOYMENT OFFICE, OR BY WRITING TO THIS OFFICE, ATTENTION OF THE APPEALS EXAMINER. A STATEMENT MUST BE MADE SETTING FORTH THE REASONS WHY YOU FEEL THE DECISION IS IN ERROR.
DECISION MAILED_DECISION FINAL

The two dates on the last line were inserted by typewriter, respectively, mailed: 7 — 8— 75; final: 7-22-75. The decision went to Drinkard by certified mail, no return receipt requested; that he received it is not questioned.

The Commission made findings, in substance these: Drinkard went to a Department office to make his claim for review, but was dissuaded from doing so and advised to write out his claim for review and mail it to the Department; a Department employee gave Drinkard a pre-addressed envelope, addressed to the Department; Drinkard’s letter appealing the decision of the Appeals Examiner is dated July 21, 1975; the envelope transmitting the letter is postmarked July 23; Drinkard’s letter was stamped as received by the Department’s division of appeals on July 24; that the decision of the Appeals Examiner was mailed to Drinkard on July 8, 1975. On the basis of this last finding it concluded that the decision was “served” on Drinkard on July 8. I.C. § 72-1368(e).1 The Commission concluded that it was without jurisdiction because his claim for review was not “filed” until July 24, more than 14 days after the decision was “served” on him. 1.C. § 72~1368(f).2

[224]*224The Commission disposed of the conflict in the dates of mailing, July 8, of a decision dated July 9, as “obviously a typographical error.” However, on an alternative assumption that service of the decision on Drinkard was not effective until July 9, the Commission concluded that the claim for review would still be untimely since it was not “filed” until July 24, 15 days after the date of service of the decision. Citing our decision that the 14-day appeal period is jurisdictional, Fouste v. Dept. of Employment, 97 Idaho 162, 540 P.2d 1341 (1975), the Commission dismissed the appeal.

On this appeal appellant contends that his claim for review was filed within the fourteen (14) days provided by I.C. § 72-1368(f). Our first concern is the date on which the decision of the Appeals Examiner was effectively served on Drinkard; our second is with the date of filing the claim for review.

The Commission finding that the decision was mailed on July 8 is supported by substantial though circumstantial evidence, and will not be disturbed. Totusek v. Department of Employment, 96 Idaho 699, 535 P.2d 672 (1975); Levesque v. Hi-Boy Meats, Inc., 95 Idaho 808, 520 P.2d 549 (1974); Toland v. Schneider, 94 Idaho 556, 494 P.2d 154 (1972).

We face the further question as to the legal effect of service on July 8 of a decision rendered on July 9. The finding of a typographical error is not supported by any evidence. It is more reasonable to believe that efficient office personnel mailed out the decision before being instructed to do so, and that the Appeals Examiner intended the decision to go out on the 9th. If any clerical error was made, it was the province of the Appeals Examiner, not of the Commission or this Court, to take steps to correct it. The record shows no action by the Appeals Examiner in this respect, nor did he testify to any clerical error. We hold that although the decision was mailed before its effective date of July 9, such service could not activate the running of the 14-day appeal period any sooner than the date the decision was rendered, as appears on the face of the decision itself. Cf. Backstrom v. New York Life Insurance Co., 187 Minn. 35, 244 N.W. 64 (1932); Grimes v. City of Cleveland, 17 Ohio Misc. 193, 243 N.E.2d 777 (C.P. 1969).

We are unable, as a matter of law, to agree with the Commission’s conclusion that the claim for review was not filed until July 24, the date of its physical receipt at an office of the Department. The requirement a claim for review be filed with the Commission is not further explained in the Employment Security Law, although the term “service” is defined in I.C. § 72-1368(e). The Commission agreed with a Department contention, that the term “file” as used throughout I.C. § 72-1368 means something different from “service,” and that because service is defined to include deposit of notice in the mail, “filing” must mean physical receipt, for instance, as required by I.R.C.P. 5(e).

As we see it, the Department has by its own regulations settled the issue. As mentioned, I.C. § 72-1368(f) does not define “file”; however, a cognate provision, I.C. § 72-1368(d), provides that:

“A request for redetermination may be filed by an interested party and shall be filed in accordance with such rules and regulations as may be prescribed by the director. ... A redetermination shall become final unless, within fourteen (14) days after notice, as provided in subsection (e) following, an appeal is filed by an interested party with the department of employment in accordance with such rules and regulations as may be prescribed by the director.” (Emphasis added.)

Pursuant to this authority the director has promulgated Department of Employment Regulations (effective September 14, 1973), which provide, in pertinent part:

[225]*225“ARTICLE V — APPEALS REGULATIONS
“1. Request for Hearing. •
A. Form for Filing — (1) . . .

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Related

Smith v. Idaho Department of Labor
218 P.3d 1133 (Idaho Supreme Court, 2009)
Hill v. State, Department of Employment
779 P.2d 402 (Idaho Supreme Court, 1989)

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Bluebook (online)
560 P.2d 1312, 98 Idaho 222, 1977 Ida. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-employment-v-drinkard-idaho-1977.