# Petition — Idaho Dept. of Employment v. Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 100

## Text

_ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1724%3A1. Public record. Not legal advice.