Gunderson v. Rose Hill Realty

• Decision Date: 09 November 1984
• Docket Number: Docket No. 70423
• Citation: 136 Mich.App. 559,357 N.W.2d 718
• Parties: Judy GUNDERSON, Plaintiff-Appellee, v. ROSE HILL REALTY and Michigan Employment Security Commission, Defendants-Appellants. 136 Mich.App. 559, 357 N.W.2d 718
• Court: Court of Appeal of Michigan — District of US

Page 718

357 N.W.2d 718

Judy GUNDERSON, Plaintiff-Appellee, v. ROSE HILL REALTY and Michigan Employment Security Commission, Defendants-Appellants.

Docket No. 70423.

136 Mich.App. 559, 357 N.W.2d 718

Court of Appeals of Michigan.

Submitted June 11, 1984.

Decided Aug. 7, 1984.

Released for Publication Nov. 9, 1984.

[136 MICHAPP 560] UAW Legal Services Plan by Willienard Banks and Barbara G. Robb, Warren, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Dennis J. Grifka, Asst. Atty. Gen., for Michigan Employment Sec. Com'n.

Before DANHOF, C.J., and T.M. BURNS and MEGARGLE ^*, JJ.

PER CURIAM.

On May 19, 1978, appellee Judy Gunderson, applied for unemployment benefits. The Michigan Employment Security Commission (MESC) determined that she was entitled to benefits. Ms. Gunderson subsequently received $560 in benefits. On August 17, 1978, the MESC issued a redetermination which required her to return the $560 because she refused a work offer made by her former employer. She appealed that decision to a referee, who affirmed the redetermination order. She then appealed to the MESC Board of Review, which on February 22, 1980, reversed the referee's decision. Thereafter the employer, Rose Hill Realty, sought a rehearing, which was granted. The MESC Board of Review reversed the February 22, 1980, decision, finding that Ms. Gunderson did not have a good excuse for refusing the work offer. Ms. Gunderson's request for a rehearing was denied[136 MICHAPP 561] on August 3, 1981. Subsequently, Ms. Gunderson filed a motion for delayed appeal with the circuit court. On September 16, 1982, the circuit court granted Ms. Gunderson's motion for a delayed appeal. The MESC filed a motion for rehearing in the circuit court. The motion for rehearing was denied on February 15, 1983. The MESC appeals by leave granted.

The sole issue for our determination is whether a circuit court has jurisdiction to grant a delayed appeal where the claim of appeal was not filed within the 20-day period provided in M.C.L. Sec. 421.38; M.S.A. Sec. 17.540. ¹ At the time of the proceedings below, the statute stated:

"The circuit court of the county in which the claimant resides or the circuit court of the county in which the claimant's place of employment is or was located, or, if a claimant is not a party to the case, the circuit court of the county in which the employer's principal place of business in this state is located, may review questions of fact and law on the record made before the referee and the board of review involved in a final order or decision of the board, and may make further orders in respect thereto as justice may require, but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record. Application for review shall be made within 20 days after mailing of a copy of the order or decision by any method permissible under the rules and practices of the circuit courts of this state." M.C.L. Sec. 421.38(1); M.S.A. Sec. 17.540(1).

Therefore, application for review must be made within 20 days after the mailing of the order. Ms. Gunderson filed her application for delayed appeal subsequent to the expiration of this 20-day period.

[136 MICHAPP 562] Upon considering the predecessor to this statute, the Supreme Court stated "that the legislature had provided for a specific procedure to be observed in the administration of the unemployment compensation act and for a limited judicial review, and that such provision is exclusive of any and all other possible methods of review". Mooney v. Unemployment Compensation Comm., 336 Mich. 344, 355, 58 N.W.2d 94 (1953). In considering this same statute, the Supreme Court later stated in Peplinski v. Employment Security Comm., 359 Mich. 665, 668, 103 N.W.2d 454 (1960):

" 'The power to review' thus granted is the power to hear and determine. It is language of jurisdiction. The right of appeal granted, we note, is purely statutory, and in so saying we are not unaware of our constitutional authority to issue original and remedial writs. But here the legislature has provided for a limited judicial review, to obtain which a specified procedure in specified courts must be followed. The benefits in question do not accrue in the course of the common law but have their 'roots in the legislative enactments', which enactments prescribe both the nature of the benefits and the remedies to be pursued in their effectuation. Jurisdiction for the limited judicial review available is vested exclusively with designated circuit courts." (Footnotes omitted.)

The MESC argues that the time limits stated in M.C.L. Sec. 421.38; M.S.A. Sec. 17.540 are jurisdictional and, therefore, the circuit court was without jurisdiction to grant delayed leave to appeal. Harlan Electric Co. v. Employment Security Comm., 41 Mich.App. 167, 200 N.W.2d 101 (1972). Harlan Electric clearly stands for the proposition that the time limits contained in M.C.L. Sec. 421.38; M.S.A. Sec. 17.540 are jurisdictional. In re Apportionment of Alcona County Bd. of Commr's--1982, 114 Mich.App. 443, [136 MICHAPP 563] 319 N.W.2d 360 (1982). This, however, does not resolve the instant dispute. As the trial court in the instant case noted, the court rules have been changed since Harlan Electric, supra, was decided, and holding the 20-day period to be jurisdictional is not incompatible with a procedure for permitting delayed appeal.

The trial court correctly noted that the court rules have changed since Harlan Electric, supra, was decided. GCR 1963, 706.2 provides for appeals under the Michigan Employment Security Act:

"To obtain review of an order or decision of the Michigan Employment Security Appeal Board, a party shall file in the circuit court

"(1) a claim of appeal within 20 days after the mailing to him of the appeal board's decision (see subrule 701.2); and

"(2) proof that a copy was served on the appeal board and all interested parties."

The trial court found that GCR 1963, 706.2 incorporated GCR 1963, 701.2(c), which provides for a delayed appeal to the circuit court pursuant to GCR 1963, 703. It is at this juncture that the trial court erred.

In King v. Calumet & Hecla Corp., 43 Mich.App. 319, 204 N.W.2d 286 (1972), the claimant filed for unemployment benefits with the MESC. The referee denied the claimant benefits and the claimant appealed to the commission's appeal board. The appeal board dismissed the appeal on the ground that the board lacked jurisdiction insofar as the appeal had not been timely filed. The circuit court affirmed the dismissal.

This Court affirmed, stating that since M.C.L. Sec. 421.33; M.S.A. Sec. 17.535 requires a party to file an appeal with the appeal board within 15 days of the [136 MICHAPP 564] mailing of a referee's decision or within 15 days of the denial of a motion for rehearing,...