Davoren v. Iowa Employment Sec. Commission, 62324

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HARRIS
• Citation: 277 N.W.2d 602
• Parties: Charles J. DAVOREN, Appellee, v. IOWA EMPLOYMENT SECURITY COMMISSION, a/k/a Iowa Department of Job Service and Walgreen Company, Appellants.
• Docket Number: No. 62324,62324
• Decision Date: 25 April 1979

Page 602

277 N.W.2d 602 Charles J. DAVOREN, Appellee,
v.
IOWA EMPLOYMENT SECURITY COMMISSION, a/k/a Iowa Department of Job Service and Walgreen Company, Appellants. No. 62324. Supreme Court of Iowa. April 25, 1979.

Walter F. Maley and Blair H. Dewey, Des Moines, for appellants.

Shirley G. Steele, Des Moines, for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, HARRIS, McGIVERIN and LARSON, JJ.

HARRIS, Justice.

A full-time law student worked part-time as a registered pharmacist. When laid off from his part-time job he applied for unemployment benefits under § 96.6(2), The Code, 1975. The employment security commission

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disallowed the application on the basis of a departmental rule. On the student's appeal to the trial court this disallowance was reversed and the benefits were ordered paid. We reverse the trial court and remand the case for reinstatement of the commission's decision.

The claimant, Charles Davoren (Davoren), was employed by a retail pharmacy which owned and operated a number of stores in Des Moines. Davoren was scheduled to work 18 hours a week at an hourly rate. He was also on call for weekends and while regular employees were on vacation. He was laid off from that employment November 24, 1975.

As a full-time law student Davoren carried 16 semester hours and, at the time of his application, was a senior in law school. He had classes from 9:00 a. m. to 2:00 p. m. three days a weeks and from 9:00 until noon two days a week. He could accept work after 2:00 p. m. and all day Saturday and Sunday.

Davoren's application ran afoul the statutory requirement that he show he was ". . . available for work, and . . . earnestly and actively seeking work . . . ." § 96.4(3), The Code, 1975. The commission found Davoren had made no such showing, citing rule 370-4.23(5), Iowa Administrative Code, which then provided:

Full-time students devoting the major portion of their time and efforts to their studies are deemed to have no reasonable expectancy of securing employment.

Davoren's claim is not aided by an amendment to this rule, effective December 29, 1976. The rule thereafter provided:

Full-time students devoting the major portion of their time and efforts to their studies are deemed to have no reasonable expectancy of securing employment except if the students are available to the same degree and to the same extent as they accrued wage credits they will meet the eligibility requirements of the law.

The change in the rule came after Davoren's application. It is decisive of his claim that the amended rule does not apply in his case.

In reversing the disallowance, the trial court held that the rule, as it existed at the time, did not apply to full-time students who were employed part-time, only to full-time students who were employed full-time. The trial court then decided Davoren's claim on a theory similar to that implicit in the rule as it was later amended, noting:

. . . Upon (Davoren) being laid off, he did hold himself out as available for work to the same degree as he had while he was gainfully employed; that is Monday through Friday after 2:00 p. m. and all day Saturdays and Sundays. Therefore, (Davoren) was in compliance with § 69.4-3 in that he was available for work."

Throughout the administrative proceeding, and before the trial court, Davoren contended that the administrative rule denies equal protection of law.

I. We are obliged to disregard a contention which Davoren raises for the first time in this appeal. In his brief before us Davoren seeks to argue that the promulgation of rule 370-4.23(5), as it existed at the time of his application, was an impermissible exercise of the rule-making authority delegated to the agency by the legislature. He now claims that the rule is contrary to the legislative intent expressed in chapter 96, The Code, 1975.

It is axiomatic that we will not consider questions, including constitutional questions, raised for the first time on appeal. Lemon v. City of Muscatine, 272 N.W.2d 429, 430 (Iowa 1978).

II. The burden of proof is upon a claimant seeking unemployment compensation. Walles v. Iowa Employment Security Commission, 219 N.W.2d 539, 540 (Iowa 1974); Ritchey v. Iowa Employment Security Commission, 216 N.W.2d 580, 584 (Iowa 1974). In this "contested case" under the Iowa administrative procedure act our review is not de novo. We have said:

. . . Our task is to review the record in the manner specified in § 17A.19(7) and make anew the judicial

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determination specified in § 17A.19(8). Our review is limited, as the district court's review should have been, to the record made before...