Hill v. State, Department of Employment

779 P.2d 402, 116 Idaho 727, 1989 Ida. LEXIS 137

• Court: Idaho Supreme Court
• Decided: August 16, 1989
• Docket: No. 17741
• Status: Published

Opinions

JOHNSON, Justice.

This is an unemployment insurance case. The issue presented is whether an appeal from a status determination was timely, although it was postmarked more than fourteen days after the determination was mailed to the employer. We affirm the order of the Industrial Commission, which affirmed the decision of an appeals examiner that the appeal was not timely.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Two truck drivers filed claims for unemployment compensation alleging that Hill was their employer. Hill contended that they were independent contractors. The Department of Employment (D.O.E.) made a status determination that the truck drivers were performing service for Hill in “covered employment” for unemployment insurance purposes. This status determination was mailed to Hill on March 31, 1987. It contained the following statement:

This determination of liability will become final and conclusive within fourteen (14) days of the date of this letter unless a written request for an appeal hearing is filed within that time.

On April 24, 1987, the D.O.E. office in Boise received a request for an appeals hearing from Hill’s attorney. The letter containing this request was addressed to the D.O.E. office in Boise and was dated April 10,1987. It was postmarked in Boise on April 23, 1987.

When the matter was presented to an appeals examiner of D.O.E., affidavits of Hill, his attorney, the attorney’s secretary and the postmaster of Weiser, Idaho were presented by Hill. These affidavits indicated that Hill had met with his attorney in the attorney’s office in Weiser on April 10, 1987. At that time Hill and his attorney prepared a request for an appeals hearing. The attorney’s secretary stated in her affidavit that she did not specifically recall mailing the letter, but that it was the policy and practice of the attorney’s office that when correspondence had been signed, it was immediately placed in an envelope, stamped and put in the office mail, which was then delivered to the Weiser post office on the same day. The secretary stated in her affidavit that to the best of her knowledge the request for an appeals hearing was prepared and delivered to the Weiser post office on the date it was prepared. The postmaster stated in his affidavit that a letter deposited in the Weiser post office addressed to Boise would be routed to Boise, where “it would then be stamped as received there and then be forwarded on to the appropriate address.”

The appeals examiner ruled that the request for an appeals hearing was not timely, citing I.C. § 72-1353 (1973) and Rule 06.012 of the D.O.E. Rules. Hill appealed this decision to the Commission. The Commission affirmed the decision of the appeals examiner, and Hill appealed to this Court.

II.

HILL’S REQUEST FOR AN APPEALS HEARING WAS NOT TIMELY.

Hill asserts that his request for an appeals hearing was timely, since it was mailed within fourteen days after the status determination was mailed to him. We disagree.

I.C. § 72-1353 provides:

Administrative determinations of coverage. — The director [of D.O.E.] may, upon his own motion or upon application of any employer, make findings of fact and on the basis thereof, a determination with respect to whether such employer is a covered employer and whether service performed for or in connection with the business of such employer constitutes covered employment. A determination shall become final unless, within fourteen (14) days after notice, an appeal is filed with the employment security agency setting forth the grounds for such appeal. Proceedings on appeal shall be had in accordance with the provisions of section 72-1361 of this act.

Rule 06.012 of the D.O.E. Rules provides: An appeal shall be in writing, signed by an interested party or representative, and shall contain words that, by fair interpretation, request the appeal process for a specific determination, redetermination or decision of the Department. The appeal may be filed by delivering it to any Job Service office or to the Appeals Bureau of the Department, 317 Main Street, Boise, Idaho. The date of personal delivery shall be noted on the appeal and shall be deemed the date of filing. An appeal may also be filed by mailing it to any Job Service office or to the Appeals Bureau, Department of Employment, Box 35, Boise, Idaho 83735. If mailed, the appeal shall be deemed to be filed on the date of mailing as determined by the postmark on the request.

This Court has previously held that the statutory requirements governing the right of appeal under the Employment Security Law are mandatory and jurisdictional. Striebeck v. Employment Security Agency, 83 Idaho 531, 537, 366 P.2d 589, 592 (1961); Fouste v. Department of Employment, 97 Idaho 162, 168, 540 P.2d 1341, 1347 (1975). In Department of Employment v. Drinkard, 98 Idaho 222, 560 P.2d 1312 (1977), this Court held that under a predecessor of Rule 06.012 the timeliness of an appeal was determined by the postmark on the request. The rule that was at issue in Drinkard stated that “the request for hearing shall be deemed filed on the date of mailing to [the] local office or the Boise office of the Appeals Examiner, as determined by the postmark on said request.” Id. at 225, 560 P.2d at 1315.

Here, it is clear that the request for an appeals hearing was not postmarked until nine days after the expiration of the fourteen-day period for filing an appeal. In Striebeck this Court said that the word “deemed” is interpreted “as creating a conclusive presumption.” D.O.E. Rule 06.012 states that if an appeal is mailed it “shall be deemed to be filed on the date of mailing as determined by the postmark on the request.” The conclusive presumption that arose from the postmark on Hill’s request for an appeals hearing cannot be overcome by evidence that the request was mailed earlier.

Hill would have us apply the provisions of I.C. § 72-1368(e) (Supp.1988) to the facts here. Under that section, service by mail is deemed complete on the date of mailing. However, I.C. § 72-1368(e) deals with service of notice of determinations and redeterminations by D.O.E., not appeals by interested parties. Hill points out that I.C. § 72-1361 provides that upon appeal from a determination of coverage, the conduct of the hearings and appeal procedures is governed by the provisions of I.C. § 72-1368(f), (g), (h) and (i). He argues that since I.C. § 72-1368(f) incorporates the provisions for service contained in I.C. § 72-1368(e), an appeal of a determination of coverage should be deemed complete on the date of mailing. The fallacy in this argument is that I.C. § 72-1368(f) refers to I.C. § 72-1368(e) only in terms of an appeals examiner serving notice of his decision. There is no indication in either I.C. § 72-1368(e) or (f) that the service by mail provisions referred to there were intended to apply to appeals. It is clear from reading these provisions that they apply only to notices served on interested parties of determinations, redetermination and decisions of appeals examiners.

III.

CONCLUSION.

We affirm the order of the Commission, which affirmed the decision of the appeals examiner that Hill’s appeal was not timely.

We award costs to respondent.

BAKES, C.J., concurs. SHEPARD, J., sat, but did not participate in the opinion due to his untimely death.