Weatherwax v. Hiland Potato Chip Co.

WUEST, Acting Justice

(concurring in result).

I concur in the result in the case at bar but for a different reason than stated in the majority opinion.

In my opinion, Matter of Yaroch, 333 N.W.2d 448 (S.D.1983), and Tombollo v. Dunn, 342 N.W.2d 23 (S.D.1984), do not apply to the instant action. In those cases, the plaintiffs had administrative remedies which they should have pursued to completion. In the case at bar, however, the appellant did not have an administrative remedy for wrongful discharge. He merely applied for unemployment compensation pursuant to a social program adopted in South Dakota in 1936 to ease the burden of unemployment and while it is true that a former employee cannot draw unemployment compensation if he has been discharged for cause, that is not a cause of action for wrongful discharge.

I would affirm upon the theory of issue preclusion, a branch of res judicata, which is explained in Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153 (S.D. 1983). In Gottschalk v. South Dakota State Real Estate, 264 N.W.2d 905 (S.D.1978), we recognized that, in a proper situation, the findings of an administrative agency may result in a determination that a subsequent claim is barred under the doctrines of res judicata or collateral estop-pel. Various jurisdictions have held that adjudicatory administrative findings may be afforded res judicata effect, provided they meet certain procedural requirements. See, e.g., United States v. Karlen, 645 F.2d 635 (8th Cir.1981); Bd. of Sup’rs, Carroll Cty. v. Chi. & N.W. Transp. Co., 260 N.W.2d 813 (Iowa 1977); Strachan v. Mutual Aid & Neighborhood Club, 81 Mich.App. 165, 265 N.W.2d 66 (1978); McKee v. County of Ramsey, 310 Minn. 192, 245 N.W.2d 460 (1976).

I am authorized to state that WOLL-MAN, J., joins in this concurrence in result.