Johnson v. Labor and Indus. Relations Commission, KCD
| Citation | 591 S.W.2d 241 |
| Decision Date | 03 December 1979 |
| Docket Number | No. KCD,KCD |
| Parties | Cecil Mae JOHNSON, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Defendants-Appellants. Clifton BAILEY, Petitioner-Respondent, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Respondents-Appellants. Edward B. PARKER, Petitioner-Respondent, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri et al., Respondents-Appellants. 30483. |
| Court | Missouri Court of Appeals |
Michael D. Hufft, Bruce E. Strauss, Kansas City, for Cecil Mae johnson.
Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for Division of Employment Security.
D. J. Chatfield, Jefferson City, for Labor and Industrial Relations Commission of Missouri.
James M. Smith, Legal Aid of Western Missouri, Kansas City, for Clifton Bailey.
Robert E. Gould, Kansas City, for Edward B. Parker.
Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
Cecil Mae Johnson, Clifton Bailey and Edward Parker filed claims for unemployment benefits. These claims were denied by the Commission because the claimants' appeals from an adverse deputy's determination were not timely filed. On appeal to the circuit court it was held the appeals were timely filed and the notice to Johnson of her appeal rights was sufficient.
The Commission has appealed from the finding that the claimants' appeals were timely filed. Johnson appeals the finding that the notice to her of her appeal rights was sufficient.
The Commission contends its rule authorizing service by mail of the deputy's determination is valid and an appeal taken more than ten days after such notification is untimely. Johnson contends the court erred in failing to find the notice concerning her appeal rights was so deficient it denied her due process. Affirmed.
In the Commission's appeal no question is raised concerning the merits of any of the claims for compensation. The only question raised is whether or not § 1.190, RSMo 1978 1 requires personal service on each of the claimants of the deputy's determination finding them disqualified for benefits.
A deputy determined that all three claimants were disqualified to receive unemployment compensation and a notice of this determination was mailed to each claimant. The claimants each filed a notice of appeal more than ten days after the determination was mailed or received. The appeals were generally filed about a month after the notice of determination was mailed. When the appeals were filed, they were at first summarily denied on the basis they were untimely, but this decision was set aside and the appeals referee conducted a full hearing on the question of the timeliness of the appeal. The appeals referee then decided all three appeals were untimely and found that good cause for extending the time for appeal had not been shown, and, therefore, the deputy's determination had become final. The Labor and Industrial Relations Commission dismissed the applications for review and thereafter all three claimants filed a petition for judicial review in the circuit court. The court found that § 288.070.4 does not specify the mode of service of the deputy's determination upon a claimant and, therefore, § 1.190 requires either personal or abode service.
Laws 1974, p. 867, amended § 288.070.4 to read in part as follows:
Unless the claimant or any interested party within ten calendar days after being notified by the deputy of his determination files an appeal from such determination, it shall be final.
Section 288.070.4, prior to its amendment in 1974, provided:
Unless the claimant or any interested party within seven calendar days after the delivery of the deputy's determination, or within seven calendar days after such determination was mailed to his last known address, files an appeal from such determination, it shall be final and benefits shall be paid or denied in accordance therewith.
From 1937 until the amendment in 1974, this section read as last quoted with the exception of changes in the number of days. With the amendment of 1974, the provision for mailing the notice of the deputy's determination was eliminated.
Section 1.190 provides:
Whenever any of the statutes of this state require or imply that a notice shall be given to any person concerning or affecting any right, property, claim, duty, matter or thing of any character or nature, unless the statutes expressly direct a different method of service, the delivery of a true copy of the notice to the person intended to be notified, or the leaving of a copy at his usual place of abode with some member of his family over the age of fifteen years, constitutes a valid and sufficient service of the notice.
Apparently after the amendment of § 288.070.4 in 1974, the Commission adopted regulation CSR 10-5.020 which provided:
1. Notice of an initial claim and of a deputy's determination shall be either handed to the claimant and/or the interested party, or sent by regular mail. If the notice is sent by regular mail, it shall be deemed to be delivered on the date it is placed in the U.S. mail.
3. Notice mailed to the last known mailing address shall constitute proper notice.
The claimants contend that § 288.070.4 requires notice of the deputy's determination be given but does not provide the mode or method of such service. They further contend that § 1.190 is designed to fill this void and requires personal or abode service to be made. The Commission contends that it may by regulation specify mail service under its power to fill in gaps in legislation since the statute requires notice but does not provide the mode.
In Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 141(1, 2) (Mo. banc 1974) the court stated § 1.190 "has been construed to mean that the method of service therein specified is mandatory and exclusive." This means the legislature has filled the gap in § 288.070.4 by providing for personal or abode service when notice is required by any statute but the method of service is not directed.
It is well settled that a regulation may not conflict with a statute and if it does the regulation must fall. Indiana Employment Security Division v. Ponder, 121 Ind.App. 51, 92 N.E.2d 224, 228(3) (1950); 73 C.J.S. Public Administrative Bodies and Procedure, § 94, p. 415. Here the Commission purported by regulation to allow service by mail of deputy's determinations when § 288.070.4 had been amended to eliminate the provision for service by mail. Since the deputy's determination is still required by that section to be given to a claimant, but the method of service is not specified, § 1.190 requires the notice to be delivered personally to the claimant or at his usual place of abode to a member of his family over the age of fifteen years. The failure to specify the method of service in § 288.070.4 is covered by § 1.190, and, therefore, the Commission does not have authority to provide for mail service in clear...
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