#26634-a-JKK
2013 S.D. 69
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
ERIN EILER, Claimant and Appellant,
v.
SOUTH DAKOTA DEPARTMENT
OF LABOR AND REGULATION,
UNEMPLOYMENT INSURANCE
DIVISION, Agency and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE WILLIAM J. SRSTKA, JR.
Retired Judge
****
ERIN EILER
Huron, South Dakota Pro se claimant and appellant.
AMBER L. MULDER of
South Dakota Department
of Labor and Regulation
Pierre, South Dakota Attorneys for agency and
appellee.
****
CONSIDERED ON BRIEFS
ON AUGUST 27, 2013
OPINION FILED 09/18/13
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KONENKAMP, Justice
[¶1.] We review a dismissal of an unemployment insurance appeal and a
motion to refund filing and copying fees the claimant paid to pursue this appeal.
Background
[¶2.] On January 27, 2012, the South Dakota Department of Labor and
Regulation, Unemployment Insurance Division informed Erin Eiler of her
disqualification from unemployment insurance benefits. The disqualification was
based on her alleged failure, without good cause, to accept work she was capable of
performing. According to the notice, Eiler’s reason for refusing employment with
Spherion — a temporary staffing agency where she was most recently employed —
was that she was moving. In response to the notice, Eiler sent a letter to the
Department. In it, she expressed her intention to appeal the decision, offered proof
that she had not received the notice until February 15, two days after the fifteen-
day deadline to appeal, and argued that she did not refuse work she could perform. 1
[¶3.] A telephonic hearing on Eiler’s appeal was scheduled for March 13,
2012, at 3:30 p.m. central time. The purpose of the hearing was to determine
whether Eiler’s letter filed February 17, 2012, was a timely appeal. Eiler received
timely written notice of the hearing, which warned that her failure to appear could
result in the dismissal of her appeal. On March 13, she did not call in to the
hearing at the appointed time, instead telephoning the conference operator forty
1. That proof — envelopes mailed by the Department with “02/09/13” stamped
on the forwarded address sticker — appears inconclusive. Eiler does not
refute that her late receipt of the notice was because she failed to give the
Department her updated address.
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minutes later. Eiler sent a fax to the ALJ later that day requesting that the
hearing be rescheduled or her claim reopened. She also telephoned the Department
and, according to the receptionist’s notes, explained that her failure to timely
appear at the telephonic hearing was the result of her clock being too slow. The
ALJ entered an order of dismissal on March 14, 2012, and, the next day, an order
denying Eiler’s request to reopen for failure to show good cause. Eiler requested a
review of her claim by the Secretary. The Secretary affirmed the dismissal of Eiler’s
motion for failure to attend the hearing and denied her request to reopen.
[¶4.] Eiler initiated her appeal in circuit court. In the filing form Eiler
submitted to the clerk on April 20, 2012, she marked the boxes for “Administrative
Appeal” and “Other” under the civil filing section, as well as the “Small Claims”
option. She described her claim as “[u]nemployment benefits of $1,906 withheld.”
She wrote that because the disqualification notice “was not received by short
deadlines,” she was “not fully at fault” for her own timeliness issues. After her
claim was initially filed in small claims court, the matter was transferred to the
civil docket in May 2012. The circuit court affirmed the Department’s decision on
January 22, 2013, concluding that the Department did not err in its decision to deny
reopening Eiler’s claim. It found that a failure to keep an accurate clock was
insufficient for Eiler to meet her burden to show good cause to reopen the case.
1. Dismissal of Appeal for Failure to Appear
[¶5.] Eiler contends that her due process rights were violated by the
Department’s denial of benefits based on her failure to call in to the hearing at the
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correct time. 2 The Department and the circuit court relied on ARSD 47:06:05:03.01
as grounds for dismissing Eiler’s case. The interpretation of an administrative rule
is a question of law subject to de novo review. Westmed Rehab, Inc. v. Dep’t of Soc.
Servs., 2004 S.D. 104, ¶ 5, 687 N.W.2d 516, 518. ARSD 47:06:05:03.01 provides:
If a party fails to appear at the date and time a hearing is
scheduled, the party must file a written request to reopen the
hearing to take the party’s testimony and other evidence within
ten days after the order dismissing the appeal or the decision.
In the request, the party must explain why the party failed to
appear for the hearing. The department may grant the request
if good cause is shown.
[¶6.] By the rule’s plain meaning, if a party misses a hearing, the effect is a
dismissal of the appeal, which may then be overturned by the ALJ if the defaulting
party offers a written request to reopen that gives good cause for doing so. We must
give this rule its plain meaning and effect, which is to permit dismissal of an appeal
for failure to appear and a subsequent failure to show good cause. Holscher v.
Valley Queen Cheese Factory, 2006 S.D. 35, ¶ 35, 713 N.W.2d 555, 565. While this
outcome may seem harsh, other states explicitly adopt this result in similar
procedures. See, e.g., 7 Colo. Code Regs. § 1101-2:11.2.13.1; Fla. Admin. Code r.
73B-20.017(2); La. Admin. Code tit. 40, pt. IV, § 113(3)(B); Minn. R. 7315.1600; Nev.
2. The ALJ’s sole basis for dismissing Eiler’s appeal was that Eiler failed to
appear at the hearing to determine whether her initial appeal was late. She
was then unable to show good cause for her failure to appear in order to
reopen the defaulted appeal. Her second claim regarding a lack of a legal and
factual basis for the determination notice — her failure to find work — is not
at issue in this appeal since it is not the basis for the dismissal. Eiler also
never specifically asserted that she did not timely receive the notice of the
hearing. Therefore, Eiler’s third claim that the Department was at fault for
not mailing correspondence to her sooner is irrelevant.
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Admin. Code § 481.300(1); N.J. Admin. Code § 1:12-14.4(a). Eiler’s appeal was
properly dismissed.
[¶7.] Whether Eiler’s excuse for missing her hearing — her inaccurate clock
— constituted good cause for reopening her dismissed appeal remained largely in
the discretion of the ALJ. See ARSD 47:06:05:03.01 (“department may grant the
request”). “Good cause” must be viewed in the context of the administrative rule
and applied to the circumstances of the case. The term is generally defined as “a
substantial reason amounting in law to a legal excuse for failing to perform an act
required by law.” Black’s Law Dictionary 692 (6th ed. 1990) (citation omitted).
Although we may have made a different decision, we find no abuse of discretion in
the ALJ’s ruling that Eiler’s mistake or negligence in relying on her inaccurate clock
was not good cause for reopening her appeal.
[¶8.] As for her due process claim, Eiler’s marginal status makes her
interest in the receipt of unemployment benefits high. See Mathews v. Eldridge,
424 U.S. 319, 340, 96 S. Ct. 893, 905, 47 L. Ed. 2d 18 (1976). But the touchstone of
a due process challenge in this narrow, failure-to-appear context is the sufficiency of
the notice to appear. See, e.g., Patricia D. v. Ariz. Dep’t of Econ. Sec., No. 2 CA-JV
2008-0068, 2008 WL 4517923, at *2 (Ariz. Ct. App. Oct. 8, 2008); Graves v. Dep’t of
Emp’t Sec., 182 P.3d 1004, 1008 n.11 (Wash. Ct. App. 2008). “The essence of due
process is the requirement that ‘a person in jeopardy of serious loss (be given) notice
of the case against him and opportunity to meet it.’” Mathews, 424 U.S. at 348, 96
S. Ct. at 909 (quotation omitted). “The notice must be of such nature as reasonably
to convey the required information . . . and it must afford a reasonable time for
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those interested to make their appearance.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950). Eiler’s
hearing notice gave the “required information” — the purpose and scope of the
hearing and the phone number, date, and time to call in. It also notified her that if
she did not appear “at the scheduled time of the hearing, the matter may be
dismissed or it may be decided on the basis of evidence presented by the other party
at the hearing.” Eiler did not provide evidence of untimely receipt of this notice to
carry her burden to show good cause. In short, Eiler received timely and
comprehensive notice of a properly-executed regulatory proceeding. Accordingly,
Eiler received sufficient due process, and therefore, her constitutional argument is
unavailing.
2. Court Fees in an Unemployment Insurance Appeal
[¶9.] Eiler’s remaining issue is her motion to this Court seeking recompense
for the filing and copying fees charged by the Minnehaha County Clerk of Courts.
She contends that these charges violated the prohibition in SDCL 61-7-21 against
assessing fees to claimants pursuing an unemployment insurance benefits appeal.
[¶10.] The record indicates that Eiler was charged $40.20 to file the matter in
small claims court. The other $161.80 in fees was charged by the Minnehaha
County Clerk of Courts when Eiler’s small claims matter was converted to a civil
appeal (#12-1826). The charge included a $50 filing fee for the preparation of the
record for appeal (with $11.80 in copying costs, amounting to $61.80 total), per
SDCL 16-2-29(2), and a $100 filing fee, labeled a bond, but in actuality the $100
comprised $50 for a Supreme Court filing fee, per SDCL 16-2-29.1(1), and a $50
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Court automation fee, per SDCL 16-2-41.1. 3 For this proceeding, then, Eiler was
charged $190.20 in filing fees and $202 in total fees.
[¶11.] SDCL 61-7-21 provides in relevant part that “[n]o individual claiming
benefits may be charged fees of any kind in any proceeding under this title by the
department or by any court.” Lacking any case law interpreting SDCL 61-7-21, we
“adhere to two primary rules of statutory construction. The first rule is that the
language expressed in the statute is the paramount consideration. The second rule
is that if the words and phrases in the statute have plain meaning and effect, we
should simply declare their meaning and not resort to statutory construction.”
Goetz v. State, 2001 S.D. 138, ¶ 15, 636 N.W.2d 675, 681. This language prohibiting
“fees of any kind” assessed “by any court” has a broad scope and surely includes the
$190.20 in filing fees Eiler seeks to have returned.
[¶12.] As stated in SDCL 61-7-21, “proceeding[s] under this title” include
appeals at the Department level, SDCL ch. 61-7, as well as appeals of the
Department’s final decision to the circuit court and the Supreme Court, SDCL 61-7-
14 (incorporating SDCL 1-26-30.2 and SDCL 1-26-37). Court rules and statutes
consistently define as fees the payment charged to a party for court activities
performed on their behalf. See SDCL ch. 16-2. It follows, then, that SDCL 61-7-21
3. The receipt states in the description of payment: “Undertaking for Supreme
Court Appeal $500,” for which Eiler paid $100. It appears this description
was a coding error. SDCL 15-26A-23 requires the filing of a bond for costs on
appeal of no less than five hundred dollars before the expiration of the time
for filing a notice of appeal. Such security is not “required of an appellant
who is not subject to costs.” Id. The $100 was clearly insufficient for the
purpose of the bond, but corresponds exactly to the amount of filing fees for
an appeal to this Court that are otherwise unaccounted for in the record.
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prohibits any fees charged for any court service at any stage of an appeal of Title 61
unemployment benefits decisions in the Unified Judicial System. Thus, each of the
filing fees charged to Eiler — $40.20 small claims filing fee, the $150 paid for three
separate $50 “fees” for appealing this matter to the Supreme Court as well as
$11.80 in copying fees — violate SDCL 61-7-21.
[¶13.] The weight of case law in other states regards filing fee unemployment
benefit statutes akin to SDCL 61-7-21 as statutes of prohibition. A minority of
states that have decided this issue adopt a distinction between “court costs” and
“fees” such that filing fees would not fall under their prohibitions. 4 A majority of
states, however, find that regardless of the classification of a filing cost, “court
costs” and fees fall under the prohibition. 5 Arizona stakes a middle ground, placing
taxable costs and bonds outside the prohibition, while placing filing fees within the
prohibition. 6 Taken together, the balance of persuasive authority reinforces the
plain meaning of SDCL 61-7-21 that filing fees cannot be charged to someone
seeking unemployment benefits with the Department or appealing the
Department’s decision within the Unified Judicial System. Eiler was therefore
improperly charged $190.20 by the Minnehaha County Clerk of Courts.
4. See Barnes v. Emp’t Sec. Bd. of Review, 504 P.2d 591, 604-05 (Kan. 1972);
Miss. Emp’t Sec. Comm’n v. Wilks, 171 So. 2d 157, 159-60 (Miss. 1965).
5. See Geiken v. Lutheran Home for the Aged Ass’n, 468 N.W.2d 223, 227 (Iowa
1991); Smith v. Adams, 370 A.2d 288, 289 (N.H. 1977) (per curiam); Sweeney
v. Bd. of Review, 206 A.2d 345, 349-50 (N.J. 1965); Washington v. Sumrall,
457 So. 2d 50, reh’g granted, 457 So. 2d at 53 (La. Ct. App. 1984) (per
curiam); Schomaker v. Labor & Indus. Relations Comm’n, 675 S.W.2d 450,
453 (Mo. Ct. App. 1984).
6. See Barry v. Ariz. Dep’t of Econ. Sec., 542 P.2d 1138, 1139-40 (Ariz. Ct. App.
1975).
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[¶14.] A question remains whether copying fees are unmistakably prohibited
under SDCL 61-7-21. The utility of a plain meaning interpretation ends, and the
need to look at the history of the legislation begins, when interpretation becomes
absurd or unreasonable. In re Estate of Howe, 2004 S.D. 118, ¶ 41, 689 N.W.2d 22,
32. On its face, it appears absurd to place the cost burden of copying — at the whim
of claimants — on the Department or the courts. Yet the limited legislative intent
and history of SDCL 61-7-21 appears to support prohibiting fees for copies. The
substance of the statute was adopted in special session in December 1936 to comply
with the enactment of the federal Social Security Act of 1935. See 1936 S.D. Sess.
Laws 4. The prohibition was articulated in a section entitled “Protection of Rights
and Benefits.” Id. at 21. The other provisions in that section — a prohibition
against waiver or assignment of these rights — describe the right being protected as
a “right to [unemployment] benefits.” Id. The prohibition on charging “fees of any
kind,” because of this right to benefits, was “meant to assist claimants in the
prosecution of their claims” given the limited amount of benefits involved or to
indicate that the public should bear these costs because “proper enforcement of the
basic plan concerns the public as well as the individual claimant.” See Sweeney, 206
A.2d at 350. Indeed, “[i]t is the general rule that since the purpose of
unemployment compensation benefits is to relieve the stress of economic insecurity
due to unemployment, the unemployment compensations statutes should be
liberally construed in favor of the claimant to afford all the relief the Legislature
intended to grant.” Red Bird v. Meierhenry, 314 N.W.2d 95, 96 (S.D. 1982).
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[¶15.] Viewed in this light, in adopting SDCL 61-7-21, “the Legislature used
very broad language, prohibiting the charging of ‘fees of any kind,’ and did not
distinguish between fees charged for services the [courts are] required to perform,
and those [they perform] voluntarily.” See Gretz v. Fla. Unemployment Appeals
Comm’n, 572 So. 2d 1384, 1386 (Fla. 1991) (interpreting Fla. Stat. § 443.041(2)(a)).
Thus, even though the scope of copying privileges may be curtailed by the courts or
the Department, once a claimant is charged by them for any service connected to
the claimant’s Title 61 appeal, “it is irrelevant whether there is any statutory or
other requirement” that a service be provided, the charge is invalid and runs afoul
of SDCL 61-7-21. See id.
[¶16.] This analysis does not prohibit common-sense restrictions on copying
privileges, nor does it require the courts or the Department to provide services to
claimants beyond what is statutorily required. For instance, a “copy” necessary for
an appeal is a copy of the transcript. See SDCL 1-26-32.2. While this cost is
normally borne by the party appealing, SDCL 1-26-32.3, a Title 61 claimant should
not be charged for the transcript if the transcript is necessary, such as when the
claimant appeals an adverse decision. As one court explained, “[w]e note the
agency’s concern that claimants might burden it with routine demands for
transcripts. The agency . . . may require that a demand for a transcript be related
to an actual appeal to the judiciary; the Legislature did not intend that every
claimant may have a souvenir of his administrative experience.” See Sweeney, 206
A.2d at 349-50.
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[¶17.] Considering the comprehensive prohibition on fees under Title 61,
clerks of court must be vigilant when providing services to these claimants. Not
only must clerks take precautions to ensure that no fees are charged to claimants in
their unemployment insurance benefit cases, but clerks must also protect limited
court resources by only providing copying services, on request, to claimants for
copying necessary to pursue their Title 61 claim. The scope of this necessary
copying would include a single copy of a transcript of the various Title 61 hearings
for claimants appealing decisions from those hearings, and may also include copies
to permit service on the Department of original documents required at any stage of
the proceeding in court, see SDCL 15-6-5(d), copies of briefs to be filed with the
Court and served on the Department, SDCL 15-26A-79, and copies of motions to be
filed in Court and served on the Department, SDCL 15-26A-87.2. Beyond these
requirements, and any other copying requirements explicitly provided by law, it is
not likely that the ability to copy will make the difference in introducing all
dispositive evidence or bringing a claim on appeal, therefore making it necessary for
the court or the Department to provide the service. Cf. SDCL 15-17-37; DeHaven v.
Hall, 2008 S.D. 57, ¶ 52, 753 N.W.2d 429, 445 (regarding necessary costs accrued in
civil cases generally).
[¶18.] In this case, however, Eiler should be reimbursed for the $11.80 cost of
copies made on February 28, 2013, as well as for the filing fees. The broad language
of SDCL 61-7-21 requires this remedy. See Gretz, 572 So. 2d at 1386. In granting
this motion, therefore, we conclude that Eiler should receive reimbursement of
$202.
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[¶19.] We affirm dismissal and grant the motion to refund the filing fees and
copying costs.
[¶20.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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