dissenting.
In Johns v. S. H. Kress Co., 78 Idaho 544, 548, 307 P.2d 217, 219 (1959), this court stated that “misconduct” such as to lead to the denial of unemployment compensation benefits under I.C. § 72-1366(e) could take three forms. The majority cites Johns and lists the three forms: disregard of the employer’s interest, violation of its rules, or disregard of standards of behavior which the employer has a right to expect from its employees. For the first time in the 23 year history of the Johns standard, attention is now called to the fact that when the promulgating court listed the three forms of misconduct it appended words indicating a requirement of intent to the first two but not to the third. In so doing, the majority takes the unprecedented position that un*660employment compensation benefits may be denied to a claimant who has acted unintentionally. Because I believe this new stance is not supported by the employment security law itself, by the pertinent Idaho cases, or by common sense, I respectfully dissent.
Chapter 13 of Title 72 of the Idaho Code comprises the “Employment Security Law,” I.C. § 72-1301, which, among other things, defines eligibility for unemployment compensation benefits. Section 72-1302 acknowledges the hardships which unemployment imposes on individuals, and states that the act’s purpose is to relieve some of these hardships for individuals who “become unemployed through no fault of their own.” (Emphasis added.) The drafters of the act thus.specifically included fault as a crucial element in determining the reach of its benefits.
My search has yet to reveal a single Idaho case where unemployment benefits were denied an individual whose misconduct was other than intentional.1 In at least one case, in fact, the court held benefits award-able because the misconduct was only inadvertent. Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976). Indeed, Johns itself involved an intentional act, so that its language referring to a different state of mind is dicta. In the sentence which immediately follows the language-quoted by the majority the Johns court summarized its position and stated its holding: “[t]he discharge of an employee for intentional, wilful misconduct deprives him of the right to unemployment compensation.” 78 Idaho at 548, 307 P.2d at 219 (emphasis added).
The language of Johns was not original. It first appeared in Idaho in a case decided some four years earlier, Mandes v. Employment Sec. Agency, 74 Idaho 23, 255 P.2d 1049 (1953). In Mandes the language was given proper attribution, the court noting its origin in 48 Am.Jur. § 38, pp. 541-2. A look at the full text of the Am.Jur. section indicates that its authors, at least, had no doubt about the requirement of intentional conduct. They wrote that to deny benefits there
“must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.
Neither is mere inefficiency, unsatisfactory conduct, errors in judgment, or the like to be deemed misconduct [citation omitted].”
The authors of the source relied on by the Johns court were careful to address the problem of employee negligence which led to discharge, and to note that it could be considered “misconduct” so as to deny benefits only when it functionally amounted to intentional conduct. It specifically ruled out considering errors in judgment to be “misconduct.” The updated Am.Jur.2d position is similar, although more explicit:
“Work-connected negligence or inefficiency constitutes misconduct within the meaning of an unemployment compensation statute precluding a discharged employee from unemployment compensation benefits when the negligence or inefficiency is of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations. Conversely, mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, isolated instances of ordinary negligence, or good-faith errors in judgment or discretion, are not considered misconduct for this purpose.” 76 *661Am.Jur.2d Unemployment Compensation § 54, p. 948 (emphasis added, citations omitted).
See CCH Unemployment Insurance Rptr., Vol. IB, ¶ 1970.
In addition, neither of the decisions of this court which held a claimant ineligible for benefits as a result of a violation of standards of conduct which the employer had a right to expect involved unintentional conduct. Rasmussen v. Gem State Packing Co., 83 Idaho 198, 360 P.2d 90 (1961) (placing metal chain in scrap barrel bound for processing equipment not suited to handle metal); O’Neal v. Employment Sec. Agency, 89 Idaho 313, 404 P.2d 600 (1965) (postman discharged after being convicted of lewd and lascivious conduct with minor). In fact, the court has even held that the three categories of Johns are not discreet, and that violation of any one of them does not automatically lead to a denial of benefits. Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976); Hutchinson v. J. R. Simplot Co., 98 Idaho 346, 563 P.2d 404 (1977). This suggests how inappropriate is the kind of close reading indulged in by the majority.
All aside from the limits placed on our construction of I.C. § 72-1366(e) by the act itself and by prior cases, the majority’s approach has unfortunate policy results. To the extent that an employee realizes that misconduct may result in termination without benefits that misconduct is deterred. Yet there can be no deterrent value in penalizing conduct which is unintentional since the actor, by definition, cannot ponder the consequences of the action. I would also note that under the majority’s construction, a denial of benefits based on a violation of the employer’s rules requires intentional conduct, while the denial could be based on an unintentional, even good faith, breach of “standards of behavior which the employer has a right to expect of his employees.” To require a showing of more extreme conduct for the violation of duly promulgated rules of the employer places a premium on non-promulgation, and runs counter to notions of due process.
It would not be unkind to say that there are certain aspects of Matthews’ story which strain the bounds of believeability, and it is clear that the majority here seeks to remedy what strikes it as an inequitable result. But the Industrial Commission explicitly decided that Matthews did not act intentionally when he decamped for Alaska, and its conclusion, is supported by substantial although obviously conflicting, evidence. I am not sufficiently interested in denying this claimant benefits that I would rewrite a significant portion of the employment security law to accomplish the task. I would affirm the Commission’s decision.
BISTLINE, J., concurs.. In Jenkins v. Agri-Lines, 100 Idaho 549, 602 P.2d 47 (1979), Justice Bistline argued in dissent that Jenkins’ failure to notify his employer of his intent to be absent from work was, at worst, negligent, although the majority did not so hold.