Smith v. Everett

Supplemental Opinion on Denial of Rehearing delivered December 15, 1982

Tom Glaze, Judge. We reversed and remanded this cause, relying on the recent Supreme Court decision of Leardis Smith v. Everett, 276 Ark. 430 , 637 S. W.2d 537 (1982). In its petition for rehearing, appellee first contends that the Supreme Court erred in its holding in Smith because the Court incorrectly cited and relied on the case of Goldberg v. Kelly, 397 U.S. 254 (1970). Appellee also argues that our Court erred by considering an issue that was never raised below or on appeal. For obvious reasons, we consider only appellee’s second argument.

The instant case was pending at the time the Supreme Court rendered its decision in the Smith case. Consequently, the claimant was entitled to claim the benefits of the Supreme Court’s holding in Smith. See Cummings v. State, 239 Ark. 1027 , 396 S.W.2d 298 (1965). Of course, appellee’s argument is that claimant should not benefit from such holding because he failed to raise the issue either at the Board level or in his appeal to this Court. As a general rule, we certainly agree with the appellee on this point and we recently applied this rule in Workers’ Compensation cases. See Ashcraft v. Quimby, 2 Ark. App. 332, 336 , 621 S.W.2d 230, 232 (1981); and Hamilton v. Jeffrey Stone Company, 6 Ark. App. 333 , 641 S.W.2d 723 (1982).

In Employment Security cases, the Board of Review, appeal tribunals and special examiners are not bound by common law, statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such hearing officers must be conducted in a manner to ascertain the substantial rights of the parties. Ark. Stat. Ann. § 81-1107 (d) (4) (Repl. 1976). Here, the appellee urges us to adopt a rule which would impose a duty on the parties to formally interpose objections in order to preserve a record for an appeal to this Court. If we required the parties to formally object or proffer evidence to preserve a record for appeal purposes, we would be imposing a duty contrary to that envisioned by the Arkansas General Assembly when it enacted § 81-1107 (d) (4). We believe it would be fundamentally unfair to adopt such a rule in this type case. Parties in Employment Security cases are rarely represented by attorneys, and the records on review often reflect clear errors that affect the substantial rights of the parties. The appeal tribunals and the Board of Review are mandated by law to conduct hearings and appeals in a manner to ascertain the substantial rights of the parties. If they fail to do so, we have a correlative duty to remand these cases to require it to be done.

In conclusion, we dispose of appellee’s contention that this Court somehow became a fact-finding body because we recognized from the record in this cause that the claimant was never afforded the opportunity to cross-examine adverse witnesses. While we protect, by our decision, the parties’ right to a fair hearing and appeal as contemplated by the clear language in § 81-1107 (d) (4), we merely remand this cause for further proceedings that comply with that law. The Board of Review’s authority as fact-finder remains inviolate.

Reversed and remanded.

Mayfield, C.J., concurs.