Kame v. Employment Security Department

769 P.2d 66, 105 Nev. 22, 1989 Nev. LEXIS 11
CourtNevada Supreme Court
DecidedFebruary 22, 1989
DocketNo. 18637
StatusPublished
Cited by14 cases

This text of 769 P.2d 66 (Kame v. Employment Security Department) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kame v. Employment Security Department, 769 P.2d 66, 105 Nev. 22, 1989 Nev. LEXIS 11 (Neb. 1989).

Opinion

[23]*23OPINION

Per Curiam:

On March 16, 1986, appellant Kathryn Kame was fired from her job as a waitress at the respondent Silver Slipper Casino in Las Vegas. Respondent Employment Security Department (Employment Security) rejected Kame’s claim for unemployment benefits because her employer discharged her for misconduct.

Kame appealed the decision to Employment Security’s office of appeals, and on June 26, 1986, the appeals referee affirmed Employment Security’s decision. Ms; Kame appealed to the board of review via letter on July 17, 1986. On October 17, 1986, the board dismissed Kame’s appeal. The board of review’s decision contained a notice providing that Kame could secure judicial review of the board’s decision if she filed an appeal in the district court by November 6, 1986. Since Kame resided in California, she had to file her judicial appeal in the district court located in Carson City.

Kame attempted to file her in proper person appeal with the First Judicial District Court by mail on November 8, 1986.1 The court clerk refused to file the document because it was not accompanied by a filing fee, and was not in a proper format according to District Court Rule 12.2

Apparently, in December 1986, and March 1987, Ms. Kame again attempted to file her in proper person appeal, and again the district court clerk refused to file her petition. Finally, on August 12, 1987, nearly ten months after the board of review dismissed her claim, Ms. Kame secured counsel and successfully filed her appeal at the district court in Carson City.

On September 16, 1987, respondents Employment Security and the Silver Slipper jointly filed a motion to dismiss Kame’s petition for judicial review. They asserted that Kame’s appeal to the district court was not timely filed, and therefore the district court lacked subject matter jurisdiction over the dispute. On October 19, 1987, the district court granted respondents’ motion to dismiss. Kame appeals from the district court’s decision.

[24]*24Kame argues that her November 8, 1986 in proper person attempt to file an appeal in the district court to the board of review’s dismissal of her claim tolled the applicable statute of limitations until she was able to properly file in August 1987. Within ten days after the decision of the board of review becomes final, an aggrieved party may secure judicial review thereof by commencing an action in the district court. NRS 612.530(1).3

Kame cites Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983), as support for her contention. In Copeland, we adopted the doctrine of equitable tolling of statutes of limitations in the context of claims for relief due to violations of Nevada’s anti-discrimination statutes. 99 Nev. at 826, 673 P.2d at 492.

However, Copeland is distinguishable from the instant case. Pursuant to NRS 613.330, the petitioner in Copeland filed a complaint against her employer after the employer discharged her because of her physicial handicap. 99 Nev. at 824, 673 P.2d at 491. After officials from the Nevada Equal Rights Commission misled petitioner regarding her rights under Nevada’s anti-discrimination statutes, petitioner failed to file suit in the district court within the 180 day statute of limitations imposed by NRS 613.430. 99 Nev. at 825, 673 P.2d at 491.

In the case at hand, Kame does not assert that the pertinent administrative agency, Employment Security, misled her regarding her appeal rights. On the contrary, all the notices received by Kame specifically directed her to file all appeals by a certain deadline.

Furthermore, Copeland involved an interpretation of NRS 613.430, which prohibits the bringing of causes of action based on discriminatory employment practices after 180 days from the date of the act complained of, but tolls the running of that period during the pendency of any complaint made to the Nevada Equal Rights Commission. Unlike NRS 613.430, the pertinent statute in this case, NRS 612.530(1), contains no provision allowing for tolling of the ten day period of limitation. Therefore, Copeland is inapposite to the instant case.

Respondents Employment Security and Silver Slipper argue that the ten day time limit prescribed by NRS 612.530 is jurisdictional and mandatory. We agree.

[25]*25When a party seeks judicial review of an administrative decision, strict compliance with the statutory requirements for such review is a precondition to jurisdiction by the court of judicial review. Teepe v. Review Board of Indiana Emp. Sec. Div., 200 N.E.2d 538, 539 (Ind.App. 1964). Noncompliance with the requirements is grounds for dismissal of the appeal. Id. Thus, the time period for filing a petition for judicial review of an administrative decision is mandatory and jurisdictional. Navarro Independent School Dist. v. Brockette, 566 S.W.2d 699, 700 (Tex.Civ.App. 1978).

In the past, this court has upheld the dismissal of appeals for failure to timely commence them. League to Save Lake Tahoe v. Tahoe R.P.A., 93 Nev. 270, 275, 563 P.2d 582, 585 (1977). In SIIS v. Partlow-Hursh, 101 Nev. 122, 125, 696 P.2d 462, 464 (1985), we held that the thirty day time limit imposed for filing an appeal of a decision concerning a worker’s compensation claim is jurisdictional and mandatory. NRS 616.5422(1).4 Moreover, when a statute is silent, the time period for perfecting an appeal is generally considered mandatory, not procedural. Partlow-Hursh, 101 Nev. at 124-125, 696 P.2d 463-464.

Other courts hold that the notice requirements of statutes similar to NRS 612.530(1) are jurisdictional. In Korens v. Arizona Dept. of Economic Sec., 631 P.2d 581 (Ariz.Ct.App. 1981), petitioner filed a notice of appeal from a decision of the unemployment insurance appeals board after the thirty day statute of limitations expired. Id. at 583.

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Bluebook (online)
769 P.2d 66, 105 Nev. 22, 1989 Nev. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kame-v-employment-security-department-nev-1989.