dissenting.
I cannot readily agree with the manner in which the majority distinguishes Bortz v. Payless Drug Store, 110 Idaho 942, 719 P.2d 1202 (1986), wherein it is said that:
[W]hile the charges against the claimant in Bortz were ‘unfounded,’ this Court has taken judicial notice (confirmed by counsel at oral argument) of the fact that Charlene Hine was subsequently convicted of embezzling funds from her employer.
At 246, 755 P.2d at 1284 (parenthesis in original).
More simply and accurately stated, there is no evidence in the record which establishes that claimant Hine was convicted of embezzlement. This Court could take judicial notice of that fact if a. certified copy of the conviction had been made available. I.C. § 9-101(3), provides that we may take judicial notice of “[p]ublic and private official acts of the legislative, executive and judicial departments.”
The point here involved is that on an appeal a party cannot bring into the appeal factual matters which were not before the lower tribunal by mere assertion thereof even though it may have been “confirmed *247by counsel at oral argument.” Such a procedure puts this Court or some member thereof in the untenable position of obtaining ultra vires a “judicial” off-the-record confirmation of the veracity of the “oral confirmation” volunteered by counsel. Such a practice on the part of counsel and this Court ought not to be condoned, and thus encouraged.
Moreover, I am not at all certain that relief would have denied the claimant in Bortz, had she been charged and convicted of the inadvertent theft of two dollars worth of footwear. There may be some law whereby a factual determination in a criminal action can be afforded res judicata effect in an administrative civil proceeding, but if so, I am unaware that it has been brought to our attention.
In my view the administrative proceeding where Hine sought unemployment benefits should have opened and closed with her being accorded the usual presumption of innocence which has forever held sway in all of these United States, including Idaho. On a later determination of complicity in criminal activity, and affirmed on appeal, it would then be in order for the State to bring action to recover payments. For this Court to allow and endorse the procedure here utilized, i.e., presume a claimant guilty before it is a fact defeats the intent and purpose of the law:
The legislature, therefore, declares that, in its considered judgment, the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, and for the compulsory setting aside of unemployment reserves to be used for the benefits of persons unemployed through no [established] fault of their own.
I.C. § 72-1302.