Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390

CourtSupreme Court of South Dakota
Writing for the CourtMORGAN; WUEST; HENDERSON; HENDERSON
Parties41 Ed. Law Rep. 322 Shirley A. PERMANN, Claimant and Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, UNEMPLOYMENT INSURANCE DIVISION, Appellee. . Considered on Briefs
Decision Date21 April 1987
Docket NumberNo. 15390

Page 113

411 N.W.2d 113
41 Ed. Law Rep. 322
Shirley A. PERMANN, Claimant and Appellant,
v.
SOUTH DAKOTA DEPARTMENT OF LABOR, UNEMPLOYMENT INSURANCE
DIVISION, Appellee.
No. 15390.
Supreme Court of South Dakota.
Considered on Briefs April 21, 1987.
Decided July 22, 1987.

Billy J. Jones, Dakota Plains Legal Services, Eagle Butte, and Krista Clark, Dakota Plains Legal Services, Mission, for claimant and appellant.

Drew C. Johnson, Sp. Asst. Atty. Gen., Unemployment Ins. Div., Aberdeen, for appellee.

MORGAN, Justice.

Claimant and appellant, Shirley Permann (Permann) appeals a decision of the circuit court that affirmed the decision of the Department of Labor (Department) which denied Permann unemployment insurance benefits. She was denied benefits for failing to make the employer contacts required for eligibility. We affirm.

Permann was employed as a school teacher for twelve years in Agar, South Dakota, prior to the school's closing in May of 1984. In June of 1984, Permann applied for and began receiving unemployment insurance benefits. During the succeeding ten months, Permann made numerous job contacts as required to be eligible for unemployment insurance compensation. Five of those contacts, however, were determined to be improper by Department and Permann was ordered to refund payments for those five weeks. Four of the claimed improper job contacts occurred when Permann went into her husband's tavern in Gettysburg, South Dakota, and acquired his signature as an employer on her job contact cards. The fifth contact involved the Brookings school system. As a practicing teacher, Permann was allowed to send resumes to various school systems rather than make in-person contacts. Permann sent a resume to the Brookings school system and received by return mail an application for employment. Permann failed to fill out this application and return it to the Brookings school system.

The issue heard by the hearing examiner was whether Permann adequately complied with the job contact requirements for receiving unemployment benefits under the provisions of SDCL 61-6-2(3) and ARSD 47:06:04:21. The hearing examiner's findings of fact and conclusions of law stated the five job contacts were improper and that Permann must refund the benefits. On appeal, the hearing examiner's decision was affirmed by the Secretary of Labor and the circuit court. Permann frames three issues for review as follows:

I. The Secretary's interpretation of SDCL Sec. 61-6-2(3) and ARSD 47:06:04:21, which places additional restrictions upon applicants for unemployment insurance benefits not contemplated under the statute and regulation, is an unwarranted exercise of discretion in violation of SDCL Sec. 1-26-36(6).

II. Even if the Secretary's interpretation of SDCL Sec. 61-6-2(3) and ARSD 47:06:04:21 is held to be correct, her decision is nevertheless clearly erroneous in light of the entire evidence in the record and is therefore, in violation of SDCL Sec. 1-26-36(5).

Page 115

III. The Secretary's decision that the claimed overpayment must be repaid because the claimant was at fault is, in light of the entire evidence in the record, clearly erroneous and therefore in violation of SDCL Sec. 1-26-36(5).

We believe that these issues, as framed by Permann, evidence confusion as to the correct standard of review applied in cases such as this. This confusion may have been brought on by the language of the statute. The decisions of this court may also have contributed to the confusion since in the past we have been unclear as to the correct application of the various standards of review.

Our statute dealing with a review of administrative procedures was enacted in 1966 and has been amended five times. SDCL 1-26-36 states as follows:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

One of the problems with SDCL 1-26-36 is that it does not specifically set out which standards of review listed in subsections (1) through (6) apply to the appropriate item being reviewed, i.e., findings, inferences, conclusions, or decisions. Furthermore, since a decision of the agency must necessarily include findings of fact and conclusions of law (each of which have been historically reviewed under different standards) it is confusing to mingle these terms as was done in SDCL 1-26-36.

SDCL 1-26-36 can be interpreted in several different ways as is evidenced by some of our recent decisions. Prior to the 1978 amendment of SDCL 1-26-36, this court applied a substantial evidence review to findings of fact by an agency. Application of Mont.-Dak. Util. Co., 278 N.W.2d 189 (S.D.1979). In 1978, that standard was replaced with the language "clearly erroneous in light of the entire evidence in the record." The case of State, Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984), is often cited for its recitation of the standard of review used in administrative reviews. The Miller court specifically addressed the appropriate standard to be applied in the future and clearly indicated that agency findings of fact would be reviewed under the clearly erroneous standard. We have reiterated this holding in numerous other cases. Appeal of Jackpine Gypsies Motorcycle Club, 395 N.W.2d 593 (S.D.1986); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); S.D. Wildlife Federation v. Water Mgt. Bd., 382 N.W.2d 26 (S.D.1986); Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); Weltz v. Bd. of Educ. of Scotland Sch. Dist., 329 N.W.2d 131 (S.D.1983).

Some of these same decisions, plus several others, seem to indicate, however, that the entire decision is reviewed under the clearly erroneous standard. Gratzfeld v. Bomgaars Supply, 391 N.W.2d 200 (S.D.1986); Application of Koch Exploration Co., 387 N.W.2d 530 (S.D.1986); Raml v. Jenkins Methodist Home, 381 N.W.2d 241 (S.D.1986); Application of Northwestern Bell Tel. Co., supra; Matter of S.D. Water Mgmt. Bd., supra; S.D. Wildlife Federation, supra; In re Application of Southern Hills Bank, 339 N.W.2d 310 (S.D.1983);

Page 116

Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Dakota Harvestore v. S.D. Dept. of Revenue, 331 N.W.2d 828 (S.D.1983); Fraser v. Water Rights Commission, 294 N.W.2d 784 (S.D.1980). Still other cases indicate our standard of review of agency decisions should be a combination of SDCL 1-26-36(5) & (6). We have stated in three recent opinions: "We do not substitute our judgment for the agency's judgment on the weight of evidence pertaining to questions of fact unless the agency's decision is clearly erroneous, or is arbitrary, capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion." Appeal of Templeton, 403 N.W.2d 398, 399 (S.D.1987) (emphasis added); Anderson v. Western Dakota Insurors, 393 N.W.2d 87, 90 (S.D.1986) (emphasis added); Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533, 538 (S.D.1983). In S.D. Wildlife Federation, we initially stated that the decision would be reviewed under the clearly erroneous standard, but went on to review the board's decision to see if it was "clearly erroneous, arbitrary, an abuse of discretion, or in error as a matter of law." 382 N.W.2d at 31.

Standing out from these somewhat confusing decisions are the cases of Johnson v. Skelly Oil Co., 359 N.W.2d 130 (S.D.1984) and Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982). In Skelly Oil Co. we set out the proper scope of review for administrative findings of fact and conclusions of law.

Before we address ourselves to the issues on appeal, we first address the proper scope of review on appeal. When the issue is a question of law, the decisions of the administrative agency and the circuit court are fully reviewable. Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981). When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous. Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); State, Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984).

359 N.W.2d at 132; S.D. Wildlife Federation, 382 N.W.2d at 32 (Wuest, J. dissenting). Skelly Oil Co. was preceded by Hartpence, wherein we stated: "Initially, we must...

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  • Dan Nelson, Automotive, Inc. v. Viken, No. 23363.
    • United States
    • Supreme Court of South Dakota
    • November 2, 2005
    ...law are reviewed de novo. Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991) (citing Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113, 117 Exhaustion of Administrative Remedies [¶ 7.] Two well-established doctrines are implicated when the issue of administrative exhaustio......
  • Phipps Bros. Inc. v. Nelson's Oil and Gas, Inc., No. 18008
    • United States
    • Supreme Court of South Dakota
    • January 4, 1994
    ...of the likelihood of confusion question are in accord with our own analysis of such questions. See Permann v. Department of Labor, 411 N.W.2d 113, 118 (S.D.1987). In Permann, we stated that " 'mixed questions of law and fact [are] questions in which the historical facts are admitted or esta......
  • Interstate Telephone Co-op., Inc. v. Public Utilities Com'n of State of S.D., No. 18182
    • United States
    • Supreme Court of South Dakota
    • October 6, 1993
    ...State & City Sales Tax Liab. of Quality Serv. Railcar Repair Corp., 437 N.W.2d 209, 210-11 (S.D.1989) (citing Permann v. Dep't of Labor, 411 N.W.2d 113 (S.D.1987)); see also U.S. West Commun., Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993). We note that none of the facts of ......
  • Sander v. Geib, Elston, Frost Professional Ass'n, Nos. 17763
    • United States
    • Supreme Court of South Dakota
    • September 15, 1993
    ...We review the trial court's legal conclusion de novo. Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991); Permann v. Department of Labor, 411 N.W.2d 113, 117 We have previously recognized the continuing treatment doctrine in Wells v. Billars, 391 N.W.2d 668 (S.D.1986). The principles behind th......
  • Request a trial to view additional results
177 cases
  • Dan Nelson, Automotive, Inc. v. Viken, No. 23363.
    • United States
    • Supreme Court of South Dakota
    • November 2, 2005
    ...law are reviewed de novo. Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991) (citing Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113, 117 Exhaustion of Administrative Remedies [¶ 7.] Two well-established doctrines are implicated when the issue of administrative exhaustio......
  • Phipps Bros. Inc. v. Nelson's Oil and Gas, Inc., No. 18008
    • United States
    • Supreme Court of South Dakota
    • January 4, 1994
    ...of the likelihood of confusion question are in accord with our own analysis of such questions. See Permann v. Department of Labor, 411 N.W.2d 113, 118 (S.D.1987). In Permann, we stated that " 'mixed questions of law and fact [are] questions in which the historical facts are admitted or esta......
  • Interstate Telephone Co-op., Inc. v. Public Utilities Com'n of State of S.D., No. 18182
    • United States
    • Supreme Court of South Dakota
    • October 6, 1993
    ...State & City Sales Tax Liab. of Quality Serv. Railcar Repair Corp., 437 N.W.2d 209, 210-11 (S.D.1989) (citing Permann v. Dep't of Labor, 411 N.W.2d 113 (S.D.1987)); see also U.S. West Commun., Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993). We note that none of the facts of ......
  • Sander v. Geib, Elston, Frost Professional Ass'n, Nos. 17763
    • United States
    • Supreme Court of South Dakota
    • September 15, 1993
    ...We review the trial court's legal conclusion de novo. Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991); Permann v. Department of Labor, 411 N.W.2d 113, 117 We have previously recognized the continuing treatment doctrine in Wells v. Billars, 391 N.W.2d 668 (S.D.1986). The principles behind th......
  • Request a trial to view additional results

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