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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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