Petition — Idaho Dept. of Employment v. Smith

_ Supreme Court, U. S,

‘“ FILED

MAR 17 1977

In the Supreme Court

United States

OCTOBER TERM 1976-77

— %6-1291

IDAHO DEPARTMENT OF EMPLOYMENT

Petitioner

va.

MARLENE G. SMITH

Respondent pro se

PETITION FOR WRIT OF CERTIORARI

TO THE IDAHO SUPREME COURT

In the Supreme Court of the

United States

OCTOBER TERM 1976-77

IDAHO DEPARTMENT OF EMPLOYMENT

- Petitioner

MARLENE G. SMITH

Respondent pro se

PETITION FOR WRIT OF CERTIORARI

TO THE IDAHO SUPREME COURT

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Petitioner, Idaho Department of Employment, prays that a

writ of certiorari issue to review the judgment of the Idaho

Supreme Court entered December 23, 1976, upholding

Respondent’s claim that, under the Equal Protection Clause of

the Fourteenth Amendment of the United States Constitution,

she be eligible for unemployment compensation benefits.

OPINION BELOW

The opinion of the Idaho Supreme Court entitled Marlene

G. Smith v. Department of Employment, No. 12172, 557 P.2d

637 (1976), is printed in the Appendix hereto. No request for

rehearing or extension of time was made.

EE

JURISDICTION

The final judgment of the Idaho Supreme Court, the

highest applicable state court, was entered on December 23,

1976. This Court has jurisdiction under U.S.C.A. 1257(3),

“where the validity of a state statute is drawn in question on

the ground of its being repugnant to the Constitution, treaties

or laws of the United States. . .”

Rule 19(1 (a) found in 28 U.S.C.A. Supreme Court Rules,

is pertinent where a state covrt has decide. a case “in a way

probably not in accord with applicable decisions” of the

Supreme Court.

QUESTION PRESENTED

Whether Idaho Code Section 72-1312(a), which declares

“that no person shall be deemed to be unemployed while he is

attending a regular established school excluding night

school...” is unconstitutional as a violation of the Equal

Protection Clause of the Fourteenth Amendment to the

Constitution of the United States, in that it distinguishes

between day and night students in determining eligibility for

unemployment compensation benefits.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

COMPENSABLE WEEK. — (a) A week of unemployment

with respect to which an eligible benefit claimant shall be

entitled to benefits shall be known as a compensable week;

provided, however, that no person shall be deemed to be

unemployed while he is attending a regular established school

excluding night school, except where he has been assigned to a

refresher or special training course by the director.

11A Idaho Code Section 72-1312(a) p. 255

PERSONAL ELIGIBILITY CONDi SIONS. — The personal

eligibility conditions of a benefit claimant are that —

2

(d) During the whole of any week with respect to which he

claims benefits or credit to his \vaiting period he was able to

work, available for suitable work, and seeking work; provided,

however, the director shall waive these provisions for each week

he is attending training under the provisions of Section

72-131 2(a).

11A Idaho Code Section 72-1366(d) p. 309

Section 1. ... nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of the

laws.

Fourteenth Amendment to the

United States Constitution

STATEMENT OF THE CASE

Respondent had been a retail-clerk in a Boise, Idaho,

department store for several years when she ceased working

there in November, 1974. Respondent, a junior in college, had

occasionally enrolled in night school at Boise State University

with the expressed desire of obtaining an economics degree with

an accounting background. She continued taking night courses

during the spring of 1975, and also obtained a clerical job in

Garden City, Idaho, for a few weeks, whereupon she again

became unemployed.

She was declared eligible for unemployment insurance

benefits on April 27, 1975. She received weekly benefit checks

until mid-June, 1975, when she enrolled in summer school. She

felt that her Monday through Friday classes from 7:00 a.m. to

9:00 am. would not affect her availability to obtain suitable

employment in that most department store clerk jobs generally

commence after 9:00 am. The Idaho Department of

Employment, however, determined that she was ineligible for

unemployment insurance benefits pursuant to Section

72-1312(a), Idaho Code, because she was attending a “regular

established school excluding night school” and, hence, was

presumed to be not unemployed. This determination was

3

upheld by a redeterminations examiner on June 15, 1975, and

was affirmed by an appeals examiner on August 15, 1975. The

claimant appealed this matter to the Idaho Industrial

Commission which reversed the three prior decisions. Petitioner

appealed the Industrial Commission’s reversal to the Idaho

Supreme Court. In a final decision rendered by this highest

Idaho State appellate body, the claimant was held eligible for

benefits. This was so, allegedly, because a denial of

unemployment compensation to day-time students, while

granting them to some unemployed workers enroiled in night

school who were able, availab! and seeking suitable work was

an alleged violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

Petitioner admitted to the Idaho Supreme Court that

there was a potential argument for discrimination in granting

benefits to one group of persons attending schoo! while at the

same time denying them to other persons. It was argued,

however, that this was a decision for the legislature and not for

the courts and that fine distinctions such as this and line

drawing were primarily within the scope of duty of the

legislative body. In this area of social and welfare legislation, it

was argued by petitioner that the legislature, when disbursing

public funds derived solely from employer contributions, could

conclude that night students were more attached to the labor

market than were day students in that night students were

available for fulltime day work.

The Idaho legislature had obviously concluded that

attending school during the day restricted the availability of the

worker to accept most fulltime jobs. The legislature, therefore,

presumed that generally those who worked during the day and

went to school at night were primarily workers and only

secondarily students. Whereas, according to the legislature,

those who were only available to wok after attending school

during the day were primarily students and were not to be

considered as unemployed workers eligible for unemployment

compensation.

The claimant, although previously employed beginning at

9:30 am., had applied at many establishments which would

typically work an 8:00 a.m. to 5:00 p.m. day. She was also not

restricting her work search to retail-clerk jobs, but rather had

also sought a bookkeeper-key position. She had an accounting

and economics background and had attended the Links Business

School in Boise for a time, She was obviously not restricted to

clerk-type employment in a department store, but would be

expected to seek a variety of positions in many different

establishments. Tl.is she did, although without apparent success.

She subsequently 4>cided to enroll at Boise State University to

complete her last two years of Economics and Accounting

study in the equivalent status of fulltime student carrying a

load of 10 semester hours.

The Idaho Supreme Court declared that their holding in a

similar case, Kerr v. Department of Employment, 97 \daho 385,

545 P.2d 473 (1976), mandated that a denial of benefits

violated claimant’s constitutional rights to “equal protection.”

The claimant, pro se, originally agrued that it was unfair for her

to be denied benefits because she was going to school during the

day. She cited no constitutional provision, but it was implicit in

her argument that she felt she was being denied “equal

protection” under the Constitution of the United States

Petitioners argued in their brief and in oral argument before the

Idaho Supreme Court that there was no denial of “equal

protection” because no fundamental rights were infringed nor

was any suspect classification involved.

Petitioners also urged that the Idaho Supreme Court case

of Swanson v. Employment Security Agency, 81 Idaho 385,

342 P.2d 715 (1959), be considered in that a person attending a

“regularly established school excluding night school” was

conclusively presumed to be ineligible for unemployment

compensation. This case, although not referred to in the more

recent Kerr case, supra, was specifically disavowed as not

controlling the disposition of Respondent's case.

As the Supreme Court recently stated in Massachusetts v.

Murgia, 427 U.S. 307, 312, 314, 76 S.Ct. 2562, 2566, 2567, 49

L.Ed. 2d 520, 525-527 (1976), “equal protection analysis

requires strict scrutiny of a legislative classification only when

the classification impermissably interferes with the exercise of a

fundamental right or operates to the peculiar disadvantage of a

suspect class... This inquiry employs a relatively relaxed

standard reflecting the Court's awareness that the drawing of

lines that create distinctions is peculiarly a legislative task and

an unavoidable one... Such action of the legislature is

presumed to be valid.”

The Mattews v. DeCastro U.S.

¥7 S.Ct. 431, 434, 50 L.Ed. 2d

389, 394 (1976) case is instructive for the case at bar and cites

the well-known “reasonable basis” test for “an assessment of

any constitutional challenge to a law providing for

governmental payments of monetary benefits...” citing the

famous Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct.

1153, 1161, 25 L.Ed.2d 471 and Jefferson v. Hackney, 406

U.S. 535, 546-547, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 tests

as follows: “Governmental decisions to spend money to

improve the general public welfare in one way and not another

are not confided to the courts The discretion belongs

display

Dukes, 427 U.S. 297, 303 96 S.Ct. 2513, 2517, 49 L.Ed.2d

511, 517 (1976).

It has become accepted that “consistently with the Equal

Protection Clause, a State ‘may take a step at a time, addressing

itself to the phase of the problem which seems most acute to

the legislative mind .. . the legislature may select one phase of

one field and apply a remedy there, neglecting the others...’

Williams v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461,

99 L.Ed.2d 563 (1955), “The Equal Protection Clause does not

require that a State must choose between attacking every aspect

of a problem or not attacking the problem at all.’” Dandridge v.

Williams, supra, as cited in Gedulig v. Aiello, 417 U.S. 484, 94

S.Ct. 2485, 41 L.Ed.2d 256 (1974).

Administrative convenience, although not controlling, is

important in this matter. It is much simpler, thus less costly, to

presume Respondent was ineligible for unemployment

compensation because of her fulltime attendance at school

during the day than it is to make individual determinations as to

whether the person is able, available and seeking suitable work.

As in Weinberger v. Safli, 422 U.S. 749, 785, 95 S.Ct. 2457,

2476, 45 L.Ed.2d $22, 550 (1975), “The Constitution does not

preclude such policy choices as a price for conducting programs

for the distribution of social insurance benefits.” The

Weinberger case, supra, is also instructive in the matter of

determining the constitutionality of conclusive presumptions.

Whether there is a conclusive or only an irrebutable

presumption in the instant case is hard to determine. However,

as Lavine v. Milne, 424 U.S. 577, 583, 584, 96 S.Ct. 1010,

1014, 47 L.Ed2d 249, 254, 255 (1976), points out, the

“normal assumption” is that the applicant for welfare benefits

must prove “his eligibility” and comply with the “host of

requirements” imposed upon recipients of any “welfare

heme.”

If the Idaho Supreme Court's decision is allowed to stand,

this would work a considerchle economic and administrative

burden to the State of Idaho and its unemployment

7

compensation program. The Supreme Court stated in Matthews

v. Eldridge, 424 U.S. 317, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d

18, 41 (1976), that “the Government's interest, and hence that

of the public, in conserving scarce fiscal and administrative

resources, is a factor that must be weighed.” Administrative

convenience and cost admittedly are not so compelling as to

Classifications involving race, national origin or alienage has

day-time students and granting benefits to one group and

denying benefits to the other.

CONCLUSION

Because the decision of the Idaho Supreme Court was not

in accord with applicable Supreme Court decisions, a writ of

certiorari should be granted to review said decision.

March 16, 1977 Respectfully submitted,

APPENDIX

1. Marlene G. Smith v. Department of Employment

No. 12172, 557 P.2d 637 (1976)

il. Kerr v. Department of Employment

97 Idaho 385, 545 P.2d 473 (1976)

tl. Swanson v. Employment Security Agency

81 Idaho 385, 342 P.2d 7'5 (1959)

IV. Marlene G. Smith, Claimant

Decision of Appeals Examiner, No. 49-76,

August 15, 1975

V. Marlene G. Smith, Claimant, vs. Department of Employment

Idaho Industrial Commission, DOE 49-76

February 9, 1976

— -_ —--—

APPENDIX |

SMITH v. DEPARTMENT OF EMPLOYMENT

Cite as 557 P.2d 637

MARLENE G. SMITH, Ciaimant-Respondent

. ©

DEPARTMENT OF EMPLOYMENT

Defendant- Appellant.

No. 12172

Supreme Court of Idaho

Dec. 23, 1976

An unemployed retail clerk appealed from a decision of

the Industrial Commission denying unemployment

compensation benefits on the ground that claimant was taking

early morning college classes and was therefore unavailable for

work. The Supreme Court, Bakes, J., held that so long as an

unemployment compensation claimant meets all other relevant

statutory requirements for eligibility, benefits may not be

denied on ground that claimant attended school during daytime

hours rather than nightime hours.

Affirmed.

Social Security and Public Welfare (Key 502)

Where unemployed retail clerk established that attendance

at college classes would not have interfered with her

employment in her usual occupation, since such classes ended

before regular hours for department store clerks,

unemployment compensation benefits could not be denied on

basis that she was unavailable for work and was attending

school during daytime hours rather than nighttime hours. LC.

Sections 72-1312(a), 72-1366, 72-1366(d), 72-1368(i); Const.

art. 5, Section 9.

Wayne L. Kidwell, Atty. Gen., Roger B. Madsen, Ass’.

Atty. Gen., Boise for appellant.

Marlene G. Smith, pro se.

BAKES, Justice.

11

These proceedings were initiated by a claim for

unemployment compensation benefits. The claimant

respondent Marlene G. Smith had worked for several years as a

retail clerk in a Boise department store before losing her job

through no fault of her own in the spring of 1975. While she

had been employed as a retail clerk, slic had taken evening

classes at Boise State University. After Smith became

unemployed, she enrolled for classes ir the 1975 summer

semester at Boise State. For the first half of the summer

semester, she attended class from 7:00 to 9:00 a.m. five days a

week; for the second half, she attended class from 7:00 to 8:30

a.m. five days a week. The Department of Employment denied

her unemployment compensation benefits for the weeks in

which she was attending these early morning classes.

Smith appealed the Department of Employment’s denial

of benefits to the Industrial Commission. At the hearings before

the Industrial Commission and its claims examiner, Smith

testified, based upon her experience as a retail clerk, that

employment as a department store clerk did not normally begin

before 9:30 am., so the summer classes she had taken had not

affected her availability for work as a retail clerk. No evidence

was introduced to rebut this testimony. The Industrial

Commission found that Smith was available for work during the

weeks that she had taken summer classes and based upon this

finding and our decision in Kerr v. Department of Employment,

97 Idaho 385, 545 P.2d 473 (1976), awarded her

unemployment compensation benefits for those weeks. The

Department of Employment appealed to this Court.

The Department argues that I.C. Section 72-1312(a) makes

Smith ineligible for unemployment compensation benefits

because it provides the following:

“(N)o person shall be deemed to be unemployed while he

is attending a regular established school excluding night

school...”

However, in Kerr v, Department, supra, this Court said:

12

“We conclude that LC. Section 72-1312(a)’s definitica of

a compensable week, to the extent that i 2tiempts to

distinguish between day and night students in determining

eligibility for unemployment compensation benefits, is in

violation of the equal protection clause of the Fourteenth

Amendment to the Constitution of the Unitéd States.” 97

Idaho at 385-386, 545 P.2d at 473-374.

The Department acknowledges this decision, but argues

that Kerr is not controlling. We disagree. So long as a claimant

meets all the other relevant statutory requirements for

eligibility for unemployment compensation, such as those set

forth in LC. Section 72-1366, our holding in Kerr prohibits

denial of compensation on the ground that the claimant

attended school during daytime hours rather than nighttime

hours. We disavow any language in Swanson v. Employment

Security Agency, 81 Idaho 385, 342 P.2d 714 (1959), which

requires a contrary result, particularly the language creating the

so-called “conclusive presumption.” /d., at 393, 342 P.2d 714.

In this case the Industrial Commission found that Smith's

class attendance would not have interfered with employment in

her usual occupation and had not affected her availability for

full time work. That finding was supported by the evidence and

is affirmed. LC. Section 72-1368(i); Idaho Constitution, Art. 5,

Section 9. Therefore, Smith met LC. Section 72-1366(d)’s

eligibility requirement of being “able to work, available for

suitable work, and seeking work,” and was entitled to benefits.

Judgment affirmed. Costs to respondent.

McFADDEN, C. J., and DONALDSON, SHEPARD and

BISTLINE, JJ., concur.

13

_

APPENDIX I!

KERR v. DEPARTMENT OF EMPLOYMENT

Cite as 545 P.2d 473

97 Idaho 385

RONALD K. KERR, Claimant- Appellant

v.

DEPARTMENT OF EMPLOYMENT

Defendant- Respondent

No. 11854

Supreme Court of idaho

Feb. 3, 1976

Claimant appealed from determination of Industrial

Commission denying his application for unemployment

insurance benefits. The Supreme Court, Bakes, J., held that

denial of benefits to claimant on basis of statute which rendered

day students per se ineligible, but allowed benefits to night

students, was violation of claimant's right to equal protection;

and that claimant was entitled to unemployment insurance

benefits and to reasonable attorney’s fees incurred in

challenging constitutionality of statute.

Reversed and remanded, with directions.

1. Constitutional Law [Key 253(2)]

In area of social welfare legislation, if classification has not

been drawn upon traditionally suspect lines such as race,

religion, or sex, such classification does not offend due process

clause of Fourteenth Amendment if classification bears rational

or reasonable relation to purposes for which statute was

enacted. U.S.C_A. Const. Amend. 14.

2. Constitutional Law [Key 242.3(3L, 253(2)]

Social Security and Public Welfare [Key 260]

Where claimant for unemployment insurance benefits had

been employed full time as assistant manager of coffee shop,

14

regularly working 50 to 60 hours per week, beginning his work

day at noon, and attended morning classes at state university,

denial of benefits to such claimant who was otherwise eligible

on basis of statutory provision that only night school students

could be deemed unemployed constituted arbitrary

classification which bore no rational relation to ‘purposes for

which statute was enacted, and thus distinction drawn between

night and day students violated Fourteenth Amendment due

process and equal protection provisions. U.S.C.A. Const.

Amend. 14; LC. Section 72-1312(a).

3. Constitutional Law [Key 242.3(3)]

Social Security and Public Welfare [Key 622]

Where claimant was denied unemployment compensation

because he attended college in mornings, while studerts who

attended college in evenings were eligible for unemployment

benefits, denial of benefits was violation of claimant's right to

equal protection under law, and claimant was entitled to

benefits and reasonable attorney’s fees incurred in raising his

constitutional challenge. U.S.C.A. Const. Amend. 14; LC.

Section 72-131 2(a).

Dennis L. Cain, of Sallaz, Scanlan & Beer, Boise, for

claimant-appellant.

R. LaVar Marsh, Asst. Atty. Gen., Boise, for

defendant-respondent.

BAKES, Justice.

In this appeal we must consider the constitutionality of

portions of the following provision of Idaho’s employment

security law, LC. Section 72-1301 et seq. :

“72-1312. COMPENSABLE WEEK. — (a) A week of

unemployment with respect to which an eligible benefit

claimant shall be entitled to benefits shall be known as a

compensable week; provided, however, that no person

shall be deemed to be unemployed while he is attending a

regular established school excluding night school, except

where he has been assigned to a refresher or special

training course by the director.”

Under the authority of LS. Section 72-1312(a), the

Industrial Commission denied the claimant appellant Ronald K.

Kerr’s claim for unemployment insurance benefits because Kerr

was attending morning classes at Boise State University during

the weeks for which he sought benefits. We conclude that LC.

Section 72-1312(a)’s definition of a compensable week, to the

extent that it attempts to distinguish between day and night

students in determining eligibility for unemployment

compensation benefits, is in violation of the equal protection

clause of the Fourteenth Amendment to the Constitution of the

United States.

In 1970, four years preceding his claim for unemployment

insurance benefits, claimant Ronald K. Kerr became employed

full time as an assistant manager at the coffee shop, dining room

and airline catering facilities at the Boise Municipal Airport.

During this time Kerr’s workday regularly began at noon and

extended into the evening. He customarily worked between 50

and 60 hours per week. Kerr testified that it was normal in the

food service business for a person in his position to work

afternoons and evenings and have mornings free.

In the fall of 1971, Kerr began taking morning classes in a

business course at Boise State University. He continued taking

morning classes the following semesters and was taking morning

classes during the summer semester of 1974. That summer the

operator of the restaurant was changed and the new

management eliminated the position of assistant manager, and

Kerr’s employment was terminated on June 17, 1974. On the

following day he filed a claim for unemployment insurance

benefits. The claim was denied because Kerr was then attending

morning classes at Boise State University. Kerr appealed this

decision within the Department of Employment and then to the

Industrial Commission, both of which concluded that they were

without authority to consider the constitutionality of LC.

Section 72-1312(a), and thus they applied the statute and

denied Kerr’s claim.

Although the provision jn question, which gives differing

treatment to persons attending night school and day school, is

16

found in the definition of a compensable week, it is an

eligibility requirement for receiving unemployment insurance

benefits, and thus, like all other statutory classifications, it must

satisfy the equal protection requirements of the Fourteenth

Amendment to the Constitution of the United States. The

standard which must be applied to determine this question is

well known and of long standing:

““[T] he Fourteenth Amendment does not deny to States

the power to treat different classes of persons in different

ways. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28

L.Ed. 923 (1885); Lindsley v. Natural Carbonic Gas Co.,

220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway

Express Agency v. New York, 336 U.S. a06, 69 S.Ct. 463,

93 L.Ed. 533 (1949); McDonald v, Board of Election

Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d

739 (1969). The Equal Protection Clause of that

amendment does, however, deny to States the power to

legislate that different treatment be accorded to persons

placed by a statute into different classes on the basis of

criteria wholly unrelated to the objective of that statute. A

classification “must be reasonable, not arbitrary, and must

rest upon some ground of difference having a fair and

substantial relation to the object of the legislation, so thai

all persons similarly circumstanced shall be treated alike.”

Royster Guano Co, v, Virginia, 253 U.S. 412, 415, 40

S.Ct. 560, 64 L.Ed. 989 (1920).’”” Eisenstadt v. Baird, 405

U.S. 438, 446-447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349

(1972).

{1, 2] Im the area of social welfare legislation, if a

classification has not been drawn upon traditionally suspect

lines such as race, religion, sex, etc., the Supreme Court of the

United States has held that the classification does not offend

the due process clause of the Fourteenth Amendment of the

Constitution of the United States if the classification bears a

rational or reasonable relation to the purposes for which the

statute was enacted. Dandridge v. Williams, 397 U.S. 471, 90

S.Ct. 1153, 25 L.Ed. 2d 491 (1970); McGowan v. Maryland, 366

17

U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). However, if the

purpose of the statutory classification in question is, as the

Department of Employment argues, to protect the integrity of

the unemployment insurance fund by making ineligible for

unemployment insurance benefits persons who are primarily

students and secondarily members of the labor force, this

purpose cannot be effectuated by arbitrarily deeming night

students to be part time students and day students to be full

time students regardless of the hours worked or the time spent

in school As the facts in this case amply demonstrate, there are

types of employment in whict people normally work full time

during the afternoon and evening hours and have their morning

hours free. The record discloses that the claimant here was

working substantially more than 40 hours a week long before he

ever commenced taking morning classes. The Fourteenth

Amendment of the Constitution of the United States prohibits

the state from denying such a regularly employed person

unemployment insurance benefits because he has decided to

attend school during his non-working hours in the morning,

when persons who work a normal daytime shift are not denied

benefits because they have chosen to attend school during their

free time at night. Thus, the distinction drawn by LC. Section

72-1312(a) violates the Fourteenth Amendment and the

Industrial Commission’s conclusions of law denying Kerr

benefits upon the authority of LC. Section 72-1312(a) are in

error.

[3] The order of the Industrial Commission is reversed,

and the cause remanded with directions to award claimant Kerr

unemployment insurance benefits and reasonable attorney fees

for the entire proceedings as authorized in the regulations of the

Idaho Department of Employment.

Reversed and remanded. Costs to appellant.

McQUADE, C. J., and McFADDEN, DONALDSON and

SHEPARD, JJ., concur.

|

|

APPENDIX tI!

OLIVER W. SWANSON, Claimant-Respondent,

EMPLOYMENT SECURITY AGENCY,

Defendant. Appellant.

342 P.2d 714 (1959)

Supreme Court of Idaho

July 15, 1959

Action for employment security benefits. The Industrial

Accident Board rendered ruling in favor of claimant, and

Employment Security Agency appealed. The Supreme Court,

Smith, J., held that statute to effect that no person shall be

deemed to be unemployed and eligible for unemployment

benefits while he is attending a regular established school is

clear and unambiguous, the term shall be deemed means that no

person shall be adjudged to be or shall be regarded as

unemployed while attending regular established school, statute

creates a conclusive presumption that those attending a regular

established school shall not be regarded as unemployed and

shall be ineligible to receive unemployment security benefits,

and man who became unemployed in January while working

night shift and who attended regular established schooi in day

time was not entitled to such benefits.

Determination of Industrial Accident Board reversed.

Social Security and Public Welfare [Key 410]

Statute to effect that no person shall be deemed to be

unemployed and eligible for uner oyment benefits while he is

attending a regular established school is clear and unambiguous,

the term “shall be deemed” means that no person shall be

adjudged to be or shall be regarded as unemployed while

attending regular established school, statute creates a conclusive

presumption that those attending a regular established school

shall not be regarded as unemployed and shall be ineligible to

receive unemployment security benefits, and man who became

unemployed in Janaury while working night shift and who

attended regular established school in daytime was not entitled

to such benefits. LC. Section 72-131 2(a).

See Publication Words and Phrases, for other judicial

constructions and definitions of “Shall be Deemed.”

Frank L. Benson, Atty. Gen., John W. Gunn, Asst. Atty.

Gen. (Graydon W. Smith, former Att. Gen., on the brief), for

appellant.

Carver, McClenahan & Greenfield, Boise, for respondent.

SMITH, Justice.

Appellant Employment Security Agency will be referred

to as the agency, respondent Oliver W. Swanson as claimant and

the Industrial Accident Board as the board.

Claimant commenced this proceeding to determine

whether he was eligible for employment security benefits while

attending North Idaho Junior College in Coeur d'Alene, a

regular established school. The relevant facts found by the

agency's appeals examiner, adopted by the board on review,

read as follows:

“Claimant filed an initial claim for benefits effective

January 5, 1958. He had been employed at the Northwest

Timber Company from November, 1955, through January

8, 1958, and was unemployed because of reduction in

force.

“During the time that claimant was employed at

Northwest Timber he was working night shift from 4:45

p.m. to 1:30 am. Starting with the second semester in

January, 1956 (probably an error for 1957 — Document 2

in Agency’s Administrative file), he enrolled at the North

Idaho Junior College, majoring in education. His classes

ran from 8 am. to 2:25 p.m. When the first semester

ended on January 24, 2958 (although he did not take his

examinations until January 29), claimant did not

immediately enroll but after surveying the labor market

————S

—

and finding that there were few if any jobs existing, he

enrolled as of February 17. At the time of the hearing

[March 3, 1958] he was pursuing his course at the college.

“The claimant, after completing the first semester,

made an effort to find other work but, not being

successful in this, he again enrolled; and at the time of his

hearing [before the appeals examiner], he was a full] time

student at the junior college. He was also a fulltime

student between the time of his being laid off and until

after taking his examinations for the semester.”

The facts are not in dispute.

LC. Section 72-1312(a), the particular statute involved,

reads as follows:

“A week of unemployment with respect to which an

eligible benefit claimant shall be entitled to benefits shall

be known as a compensable week ; provided, however, that

no person shall be deemed to be unemployed while he is

attending a regular established school excluding night

school.” (Emphasis supplied. )

The matter for decision by the board on review was

whether claimant was eligible for benefits beginning January 8,

through the week ending February |, 1958, and during times

thereafter, while attending the college. Based upon the facts as

outlined and the statute as applied to those facts the board

determined that claimant should be allowed benefits. The

agency appealed from the board’s determination.

The single question of law involved pin-points on the

interpretation of the portion of LC. Section 72-1312(a), “no

person shall be deemed to be unemployed while he is attending

a regular established school excluding night school” The board,

holding in favor of claimant, ruled that the phrase, “no person

shall be deemed to be unemployed,” creates a prima facie but

rebuttable presumption of ineligibility for benefits, and that

claimant had successfully rebutted the presumption, thus

entitling him to benefits. The agency asserts such ruling as error.

The words “deem” or “deemed” have been the subject of

considerable controversy and in instances have received the

interpretation that they create a disputable presumption and

not a conclusive one. Cases in this category are: Kleppe v. Odin

Tp., McHenry County, 40 N.D. 595, 169 N.W. 313; Moody v.

State, 159 Tenn. 245, 17 S.W.2d 919; Sanitary Mik 4& Ice

Cream Co. v. Hickman, 119 W.Va. 351, 193 S.E. 553;

Zimmerman v. Zimmerman, 175 Or. 58°, 155 P.2d 293;

Erickson v. Erickson, 167 Or. 1, 115 P.2d 172; Williamson v.

Winningham, 199 Oki. 393, 186 P.2d 644; Brimm vy. Cache

Valley Banking Co., 2 Utah 2d 93, 269 P.2d 859.

Conversely, many well reasoned decisions indicate the

weight of authority to be that the words “deem” or “deemed”

create a conclusive presumption. We refer to a few of *hose

decisions.

In the early case of Leonard v. Grant, C.C.D.Or., 5 F 11,

16, was involved a federal law (19 Stat. 604) which provided

that a woman, capable of naturalization, who was now or may

hereafter be married to a citizen of the United States, shall be

deemed a United States citizen. The Court, in construing the

statute as creating a conclusive presumption, ie., the equivalent

to her being naturalized directly by an act of Congress or in the

usual mode thereby prescribed, said: ““The word ‘deemed’ is the

equivalent of ‘considered’ or ‘judged; and, therefore, whatever

an act of congress requires to be ‘deemed’ or ‘taken’ as true of

any person or thing, must, in law, be considered as having been

duly adjudged or established concerning such person or thing,

and have force and effect accordingly.”

In Harder v. Irwin, D.C.N.Y., 285 F. 402, 405, was

interpreted a provision of the Revenuc Act of 1916, Section

31(b), as amended by Act October 3, 1917, 40 Stat. 300

(Comp. St. Section 6336z), that any distribution made to

corporation shareholders “shall be deemed to have been made

from the most recently accumulated undivided pcofits or

22

surplus.” The Court held that the word “deemed” must be

construed as an absolute requirement or as creating a conclusive

presumption. See United States v. Davis, D.C. Mo., 50 F.2d

903, to the same effect.

H. P. Coffee Co. v. Reconstruction Finance Corp., Emp.

App., 215 F.2d 818, 822, involved the interpretation of a

Federal regulation, that coffee subsidy payments shall be

deemed to have been paid on all coffee the importer had in

inventory on termination of the program. The Court, in holding

that “deemed” created a conclusive presumption of payment of

the subsidy, said:

“It is said that the word [deemed] must be construed

as raising only a rebuttable presumption that the subsidy

had been paid on all coffee which an importer has in his

terminal inventory, and that this presumption disappears

on proof by an importer that, in fact, he has received no

subsidy payments thereon. This contention flies directly

into the teeth of the generally accepted definitive import

of the word ‘deemed’ and almost unanimous judicial

determination that the word, when employed in statutory

law, creates a conclusive presumption. E.g., United States

v. Davis, D.C., 50 F.2d 903; Harder v. Irwin, D.C., 285 F.

402; Intagliata v. Shipowners & Merchants Towboat Co.,

CaLApp., 151 P.2d 133, subsequent opinion 26 Cal.2d

365, 159 P.2d 1; King v. McElroy, 37 N.M. 238, 21 P.2d

80; Commonwealth v. Pratt, 132 Mass 246. See 11 Words

and Phrases, Deem, pp.478-482. Absent qualifying

language, or ambiguity, we must give to the word

‘deemed,’ as employed in the emphasized language of

paragraph 1(f)iii), its natural import.”

In In re Waldron’s Estate, 84 Colo. 1, 267 P. 191, the

Court held that the word “deem” created a conclusive

presumption as to residence, as used in a statute providing that

in the case of a person dwelling in the state for the greater part

of any period, he shall be deemed a resident during the twelve

consecutive months in the twenty-four months next preceding

his death, for the purpose of determining inheritance taxes.

In State v. Holmes, 133 Wash. 543, 234 P. 275, the Court

held that a law created a conclusive presumption, which

provided that an attorney who failed to register annually and

pay a registration fee, “shall be deemed” suspended.

In 26 A C.J.S., p. 122, definitions of the word “deemed,”

taken from many jurisdictions, appear as follows:

“Following the definitions given for the present tense

and, of course, depending upon the connection or

circumstances of its use ‘deemed’ h.s been variously

defined as meaning acvounted, adjudged, conclusively

considered, considered, declared, decreed, determined,

judged, or presumed; accepted as an established fact;

construed or interpreted, held, regarded or treated as;

taken and considered. ‘Deemed’ is further defined as

meaning conclusively presumed, as distinguished from

presumed prima facie; although it has also been held that

sometimes the word may connote a prima facie

presumption as distinguished from a conclusive

presumption.

“ ‘Deemed’ has been held to be equivalent to, or,

synonymous with, ‘adjudged,’ ‘considered,’ and ‘decreed,’

and also with ‘determined,’ ‘presumed,’ and ‘regarded.’ ”

The text cites the jurisdictions of North Dakota and Virginia

wherein the word has been held connoting a prima facie

presumption as distinguished from conclusive presumption.

In our own jurisdiction we find one instance, in Powell v.

Spackman, 7 Idaho 692, 65 P. 503, 54 L.R.A. 378, wherein was

construed the word “deem;” therein this Court, in construing

the portion of Idaho Const. art. 6, Section 5, reading:

“For the purpose of voting no person shall be deemed to

have gained or lost a residence by reason of his presence or

absence * * * [then follows certain contingencies] .”

voted as follows:

“The word ‘deemed’ is the past participle of the

transitive verb ‘deem,’ which is defined by Webster as

follows: “To account; to esteem; to think; to judge; to hold

in opinion; to regard.’ And it is defined by the same

lexicographer, when used as an intransitive verb, as

follows: ‘To be of opinion; to think; to estimate.’ Giving

this word its ordinary signification as generally used, it

would read in the provision in question thus: ‘No person

shall be accounted, or no person shall be esteemed, or no

person shall be thought to be, or no person shall be judged

to be, or no person shall be held in opinion to be, or no

person shall be regarded to have gained or lost a residence

by reason of his presence or absence at an asylum kept at

the public expense, for the purpose of voting.”

The Court thus construed the presumption of such

constitutional provision as conclusive in that it preserved the

voting status of an inmate of the Soldiers’ Home at the time of

his entry therein, and that the inmate could not, by reason of

his mere presence in the Home, acquire a voting right in the

county and precinct in which the institution is situate. The

Court concluded, “That construction gives force and effect to

the language of the provision, and has due regard for the

common meaning of the words employed.”

This Court has interpreted “shall” as having a mandatory

meaning. In Munroe v, Sullivan Mining Co., 69 Idaho 348, 207

P.2d 547, the word received such an interpretation as used in

LC. Section 72-1227, which provides that the Industrial

Accident Board “shall” select a medical panel in a silicosis case

from members of a silicosis panel; and in Miller v. Brinkman, 48

Idaho 232, 281 P. 372, this Court attributed a mandatory

meaning to the word, as used in C.S. Section 6726 [now LC.

Section 5-905], setting forth conditions under which the court

“shall” set aside a judgment. See also Hollingsworth v. Koelsch,

76 Idaho 203, 280 P.2d 415; Pierce v. Vialpando, 78 Idaho 274,

301 P.2d 1099,

We now seek the meaning of the phrase “shall be deemed.”

25

In Central Surety & Insurance Corporation v. Marro, \89

Misc. 823, 71 N.Y.S.2d 815, 817, was construed a statute [N.Y.

Insurance Law, Section 121] providing that an insurer

delivering a contract of insurance to a broker shall be deemed to

have authorized the broker to receive premiums due on insurer's

behalf or to become due not more than ninety days thereafter.

The Court held that the phrase, “shall be deemed” created a

conclusive presumption of authority of the broker to receive

payments belonging to the insurer.

In Kerckhoff-Cuzner Mill & Lumber Cu. v. Olmstead, 85

Cal. 80, 24 P. 648, the Court construed the phrase, “shall be

deemed equivalent to completion,” meant in legal effect equal

to completion; that is, “for the purpose of filing a lien [shall be

treated] as an actual completion,” — a conclusive presumption.

In Irwin v. Pickwick Stages System, 134 Cal.App. 443, 25

P.2d 998, 1000, the Court held that the phrase “shall be

deemed,” created a conclusive presumption as used in a statute

providing that title to a vehicle shall not be deemed to have

passed from a legal owner to another until new certificates of

registration and ownership are issued.

In Dilworth v. Schuylkill Imp, Land Co. of Philadelphia,

219 Pa. 527, 69 A. 47, 48, the Court held that expressions,

“shall be construed” and “shall be deemed,” had been used

time out of mind in statutes to import the same as “shall

The cases are few which construe statutes similar in import

to our statute, LC. Section 72-1312(a). We shall review the few

cases we have been able to find.

In Wyka v. Colt’s Patent Fire Arms Mfg. Co., 129 Conn.

71, 26 A.2d 465, claimant left employment to attend a school.

The statute provided that an individual should not be eligible

for benefits if the administrator found that he had left

employment to attend school as a regularly enrolled student.

The Court ruled that one who had left employment to become

a regularly enrolled student at a university, could only become

26

eligible for benefits upon completing the course of study and

again registering for work.

In Cornell v. Dalpiaz, Ohio App., 128 N.E.2d 132, 133,

was interpreted a statute which precluded students attending an

established educational institution, from receiving

unemployment benefits. The applicant for benefits was shown

as enrolled in and attending a refrigeration course in a trade

school established by the Veterans Administration which, the

Court held, was not “an established educational institution”

and consequently that the applicant was eligible for benefits

because the Ohio legislature in enacting the statute, did nas

have in contemplation the kind of trade school which the

applicant was attending, and because he was able to and

available for work during his attendance in the trade school.

In Cornell v. Schroeder, 94 Ohio App. 75, 114 N.E.2d

595, 597, under the statute which precluded a payment of

benefits to a person leaving his most recent work to attend an

established educational institution, the Court, in denying

benefits to an applicant while attending business school during

her period of unemployment, ruled: “Claimant's enrollment in

the business school inevitably affected her freedom of effort to

find suitable employment, tef‘ecting adversely on whether of

not she was reasonably availabie for work under the statute,”

and upon ruling that the statute was certain, definite and

unambiguous, stated: “the court cannot judicially amend the

law nor change its meaning when that statute is susceptible of

only one interpretation.”

In Acierno v. General Fireproofing Co., 166 Ohio St. 538,

144 N.E.2d 201, the Ohio Court held that “regularly attending”

an established educational iistitution connotes attendance

therein as would normally be required to complete the

prescribed course for graduation on customary and usual

schedules of the institution. There is no such limitation in LC.

Section 72-1312(a), since our statute merely provides that no

person “attending” a regular established school shall be deemed

to be unemployed.

27

Again returring to our own jurisdiction wherein this Court, in

Powell v. Spackman, supra, has interpreted the word “deem” as

creating a conclusive presumption, the connotation of LC.

Section 72-1312(a) is that no person shall b= =< °>ted, or

esteemed, or thought to be, or judged to be, or held in opinion

to be, or shall be regarded as unemployed while attending a

regular established school excluding night school.

The statute is clear and unambiguous. The intent of the

legislature to create the conclusive presumption that those

attending a regular established school shall not be regarded as

unemployed and shall be iueligible to receive employment

security benefits is clearly indicated. This Court cannot

judicially amend LC. Section 72-1312(a), nor change its

meaning when it is susceptible only of the one interpretation.

The determination of the Industrial Accident Board is

reversed.

No costs allowed.

PORTER, C. J., and TAYLOR, KNUDSEN and

McQUADE, JJ., concur.

To determine if the claimant was attending a regular

established school.

STATUTORY PROVISIONS

Section 72-1312 of the Idaho Code in the definition of

“compensable week” is is stated * * * provided, however, that

no person shall be deemed to be unemployed while he is

attending a regular established school excluding night

school, * * * .”

FINDINGS OF FACT

Following the claimant’s last regular employment, she was

found eligible for unemployment insurance benefits on April

27, 1975. She continued receipt of said benefits until notifying

the Department that she had enrolled im classes or a class at

Boise State University on June 13, 1975. Her classes were from

Monday through Friday from 7:00 am. to 9:00 am. She

explained that it in no way affected her availability for full-time

work. It is her opinion that inasmuch as there is no night school

during the summer months, such as she attended during the fall

and winter terms of school, that perhaps the law might be

discriminatory with respect to the manner in which it is

couched and resulting in her subsequent denial of benefits. She

believes that some consideration should be given considering her

hours of school and the hours that she is willing to work. She

explained that her last regular employment began at something

near 9:30 am. and proceeded throughout the day for an eight

legislative action, as expressed in the statute, is clear and

unambiguous that an individual “attending a regular established

school” is not deemed unemployed.

The claimant in this instance, attended a class or classes of

an academic nature in an established university during a regular

session of school. That it is a regular established school is not

questioned. Thus it must be seen that the claimant, while so

enrolled, did not meet the requirements of the law during that

time.

DEWISION

Wherefore by reason of the foregoing Findings of Fact and

Statutory Provisions it is hereby DETERMINED:

The redetermination of the Redeterminations Examiner

denying benefits effective June 15, 1975, is affirmed.

This ineligibility will continue until such time the claimant

is no longer enrolled in a regular established school and meets

all other requirements of tne Employment Security Law.

Dated at Boise, Idaho, on this 15th day of August, 1975.

/s/ G. H. Oram

Senior Appeals Examiner for the

Department of Employment

APPENDIX V

In the Matter of

MARLENE G. SMITH, Claimant

vs.

DEPARTMENT OF EMPLOYMENT, Defendant.

The above entitled matter came before the Commission for

hearing in Boise on November 13, 1974, with Commissioners

Lawrence G. Sirhall, Will S. Defenbach and Gerald A. Geddes

present. The claimant was present in person and testified in her

own behalf. The Department of Employment was represented

by Ray Malouf, Legal Counsel. Having considered the evidence,

the Commission enters the following Findings of Fact,

Conclusions of Law and Order.

FINDINGS OF FACT

I

The claimant's usual occupation has been as a clerk in

department stores. The claimant has been determined to be

ineligible for benefits by the Department of Employment for

the reason that she was attending Boise State University during

periods in 1975.

ll

During the period from June 13 to July 11, 1975, the

claimant attended class from 7 to 9 am. From July 14 to

August 15, the claimant attended a class from 7 to 8:30 a.m.

The classes were held five days a week.

The claimant normally commenced work at the time the

department stores open at approximately 9:30 a.m. Her class

attendance has not interfered with her employment in her usual

occupation and, thus, has not affected her availability for full

time work. ee

31

CONCLUSIONS OF LAW

I

Section 72-1312(a) Idaho Code provides that no person

shall be deemed to be unemployed while he is attending a

regular established school excluding night school. The claimant

was found ineligible under this provision by a decision of the

Appeals Examiner for the Department of Employment.

The Idaho Supreme Court has recently determined that

this provision of the Emplov sent Security Law violates the

Equal Protection Clause of the Fourteenth Amendn.ent to the

Constitution of the United States to the extent that it attempts

to distinguish between day and night students in determining

eligibility for unemployment insurance benefits. Kerr ».

Department of Employment, Supreme Court No. 11854,

February 3, 1976. The Commission, therefore, concludes that

the claimant cannot be found ineligible under this provision,

and the decision of the Appeals Examiner must be reversed.

IT IS HEREBY ORDERED and this does order that the

claimant is eligible for unemployment insurance benefits

effective June 15, 1975. The decision of the Appeals Examiner

is hereby reversed,

DATED and FILED this 9th day of February, 1976.

INDUSTRIAL COMMISSION