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Unemployment Appeals |
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Effective as Amended February 1, 2001
RULES OF APPELLATE PRACTICE AND
PROCEDURE
UNDER THE
IDAHO EMPLOYMENT SECURITY LAW
INTRODUCTION
By virtue of the authority vested in the Industrial Commission pursuant
to Idaho Code §§ 72-508 and 72-1368(7), the Industrial Commission of the
State of Idaho does hereby adopt the following rules of procedure governing
judicial matters under its jurisdiction as provided by the Idaho Employment
Security Law. These rules shall repeal those rules previously adopted by the
Commission on July 1, 1998.
Where reference is made in these Rules to "the Commission," that term
shall include the full Commission or members thereof and any Referee to whom
the Commission has referred all or any part of the matter.
COMMENT: - Idaho Code § 72-508 provides that the Commission shall have
authority to promulgate and adopt reasonable rules and regulations involving
judicial matters, the provisions of Chapter 52, Title 67, Idaho Code,
notwithstanding. Idaho Code § 72-1368(7), provides that the Commission shall
decide all claims for review of decisions of appeals examiners of the
Department of Commerce & Labor, filed by any interested party in accordance
with the Commission’s own rules of procedure.
RULE 1
TITLE AND SCOPE OF COVERAGE
These rules may be known and cited as the Rules of Appellate Practice and
Procedure Under the Idaho Employment Security Law, or abbreviated R.A.P.P.
and they shall apply in all disputed appeals coming under the Commission’s
jurisdiction. Only an interested party to a Decision of an Appeals Examiner
of the Department of Commerce & Labor may file an appeal to the Commission,
and the Commission shall make such Order or Ruling as allowed by Idaho Code
§ 72-1368(7).
RULE 2
DEFINITIONS
"Appeal" means a writing, signed by an interested party or legal
representative, containing words that, by fair interpretation, present a
claim for review. To be valid, an appeal must be filed by delivering it to
the Idaho Industrial Commission, 317 Main Street, Boise, Idaho, or by
mailing it to the Industrial Commission, P.O. Box 83720, Boise, Idaho,
83720-0041. If personally delivered, the appeal must be received by 5:00
p.m. on the last day to appeal. Appeals delivered to any other Industrial
Commission office, appeals delivered or sent to any Department of Commerce &
Labor office, and appeals that are not signed by an interested party or his,
her or its attorney are not considered valid appeals.
"Interested party" is defined by Idaho Code § 72-1323 and includes, with
respect to a claim for benefits, the claimant, the claimant’s last regular
employer, the covered employer whose account is chargeable for experience
rating purposes, the cost reimbursement employer who may be billed for any
portion of benefits claimed, and the Director of the Department of Commerce
& Labor or a duly authorized representative of any of them. With respect to
proceedings involving employer liability, "interested party" means the
employer and the Director or a duly authorized representative of either of
them.
"Service" means mailing or personally delivering a copy of the document
to each interested party. Service by mail is deemed complete upon the date
of mailing to the party’s last- known address.
"Filing" means personally delivering a document to the Industrial
Commission at 317 Main Street, Boise, Idaho, mailing it to the Industrial
Commission, P.O. Box 83720, Boise, Idaho, 83720-0041, or transmitted by
facsimile to 208-334-2321. Appeals delivered by any means to any other
Industrial Commission office will not be considered filed. Appeals sent to
the Department of Commerce & Labor will not be considered filed.
If personally delivered, the appeal must be presented to the Industrial
Commission during business hours and received no later than 5:00 p.m. on the
last day to appeal. The date of personal delivery shall be noted on the
appeal and shall be deemed the date of filing.
If mailed, the appeal shall be deemed to be filed on the date of mailing
as determined by the postmark on the envelope containing the appeal.
Appeals transmitted by facsimile to the Commission and received by 5:00
p.m. on a business day shall be deemed filed on that day. An appeal
transmitted by facsimile and received by the Commission on a weekend,
holiday, or after 5:00 p.m. on a business day shall be deemed filed on the
next business day.
RULE 3
FILING APPEALS
FORM - An appeal shall be in writing, signed by an interested party or
legal representative, and shall contain words that, by fair interpretation,
present a claim for review.
TIMELINESS - The appeal must be filed within fourteen (14) days of the
service by mail or otherwise of a final decision of the appeals examiner. An
appeal not filed within such time will be dismissed as untimely. Service by
mail is deemed complete upon the date of mailing to the party’s last-known
address. If a timely request or motion for rehearing is filed with the
Department of Commerce & Labor Appeals Bureau, the fourteen-day period does
not begin to run until service by mail or otherwise of a final order issued
by the Bureau.
NOTIFICATION - When a claim for review or appeal of a decision of an
appeals examiner is filed with the Industrial Commission, the Commission
shall notify by mail all interested parties, who had notice of the decision
of the appeals examiner, by mailing or delivering to said interested parties
a copy of the claim for review.
COPIES OF CORRESPONDENCE TO ALL INTERESTED PARTIES - Any party sending
correspondence to the Commission concerning an appeal shall serve copies on
all interested parties as well.
DISCOVERY NOT PERMITTED - No discovery procedures as contemplated by the
Idaho Rules of Civil Procedure are permitted.
TRANSCRIPTS - Pursuant to Idaho Code § 72-1368(6), the Commission will
prepare and serve on all interested parties a copy of the tape recording of
the appeals examiner’s hearing in each case appealed to the Commission. The
form of the copy, either audio tape or paper transcript, will be at the
discretion of the Commission.
CHANGE OF ADDRESS - Any interested party shall promptly notify the
Commission in writing of any change of mailing address.
COMMENTS: Subsection (A) clarifies that appeals of decisions of hearing
examiners must be sent to the Industrial Commission, not the Department of
Commerce & Labor. Additionally, if a representative makes the appeal on
behalf of the party, the representative must be legally authorized to
represent the party in Idaho. See RULE 8. Representation of Parties Before
Commission.
Subsection (B) derives from Idaho Code § 72-1368(5) and (6), which
provide that unless an interested party shall within fourteen (14) days
after service of the decision of the appeals examiner file a claim for
review or unless an application or motion is made for a rehearing of such
decision, the decision of the appeals examiner shall become final. The Idaho
Supreme Court has held that it is mandatory and jurisdictional that appeals
be filed within the statutory time period. There is no provision for
granting relief for extenuating circumstances. Fouste v. Department of
Labor, 97 Idaho 162,540 P.2d 1341 (1975).
Subsection (D) contemplates the Department of Commerce & Labor as an
interested party.
Subsection (E) stems from a recognition that time is of the essence in
Unemployment Insurance Act proceedings.
Subsection (F) invokes the Commission’s authority to require a transcript
of a proceeding, pursuant to Idaho Code § 72-1368(6), so that the Commission
may discharge its obligation to rule on appeals on the basis of the record
of proceedings before the appeals examiner, as mandated by § 72-1368(7) and
as a due process safeguard.
Subsection (G) service by mail is deemed complete on the date of mailing
to the party’s last-known address. Therefore, it is imperative that the
Commission be kept apprised of current mailing address information.
RULE 4
BRIEFS
TIME FOR FILING - The Commission may, upon request of an interested party
filed within seven (7) days from the date of mailing of the record, grant
all parties time in which to submit argument by written briefs. Unless there
appears good cause for establishing an alternative briefing schedule and the
Commission so orders, the party requesting the right to submit a brief shall
file an opening brief no later than ten (10) days after notice of the
Commission’s decision to grant the request to allow the filing of the
opening brief. A responding brief may be filed by an interested party.
Responding briefs shall be filed and served seven (7) days from the date of
receipt of the opening brief. As continuances are not favored, the
Commission will not grant requests for additional time for filing briefs
unless made by motion within the original time allowed and upon a showing of
good cause.
CITATIONS AND SUPPORT REQUIRED - Written argument must be based upon the
evidence established in the evidentiary record. Whenever a party refers to
hearing testimony, whether by quoting or paraphrasing, such reference must
include a citation to the page or pages in the transcript, whenever
practicable, where the hearing testimony can be found. If the testimony is
not transcribed, this requirement is waived. Whenever a party refers to
evidence reflected in an exhibit, such reference must include a citation to
the exhibit number. Whenever a party asserts a point of law, such assertion
must be supported by citation to appropriate legal authority. Whenever a
brief does not contain the citations and support required by this rule, it
may be subject to a motion to strike by any party or may be stricken by the
Commission on its own motion.
LENGTH - No brief in excess of 30 pages, exclusive of any addendum or
exhibit, shall be filed without the Commission’s prior consent. A brief of
20 pages or more shall contain a table of contents.
COMMENT: Pro se refers to those parties who represent themselves before
the Commission. Such parties are encouraged to comply with the citations’
requirements. A pro se brief that does not strictly comply with the citation
requirements will be deemed to have complied as long as the pro se party
appears to have made a good faith effort to apprise the Commission of the
facts and law on which he or she relies.
RULE 5
EX PARTE COMMUNICATIONS
EX PARTE COMMUNICATIONS PROHIBITED - From the time an appeal is filed
until it becomes final under Idaho Code § 72-1368, no person involved in the
appeal shall communicate, either directly or indirectly, or shall discuss
with a Commissioner or a Referee the merits of any matter in which an appeal
is pending unless all parties or their attorneys are present. No person
shall correspond with any Commissioner or Referee, regarding any such
matters unless service of a copy of the correspondence is made on all
parties and proof of service is filed. No person acting on behalf of any
party shall attempt to influence the disposition of an appeal through such
communications. No Referee shall knowingly cause a communication prohibited
by this section to be made. If a communication is received in violation of
this rule, the person receiving the communication shall place in the record
all such written communications or a memorandum stating the substance of all
such communications, and direct that a full copy of the communication be
sent to all other interested parties to the appeal and allow an appropriate
time for such parties to respond.
COMMENT: Subsection(A) recognizes that Commissioners and Referees are
bound by the Code of Judicial Conduct, including the rule against ex parte
contacts contained in Canon 3. All practitioners before the Commission are
similarly constrained from ex parte contacts by Rule 3.5 of the Idaho Rules
of Professional Conduct.
RULE 6
COMMISSION HEARINGS
SEVEN (7) DAYS TO REQUEST HEARING - Any interested party shall have seven
(7) days from the date of mailing of the record to file with the Commission
a written request for a hearing before the Commission.
FORM OF HEARING REQUEST - The party or parties requesting a hearing shall
submit the following information with the request for hearing:
the reason for requesting the hearing;
whether the party desires to present evidence to the Industrial
Commission in addition to that presented to the appeals examiner;
a description of the evidence the party desires to present;
an explanation of why the proposed evidence is relevant to the issues
before the Industrial Commission; and
reason why the proposed evidence was not presented before the examiner.
STANDARD OF REVIEW FOR HEARING REQUEST; NOTICE OF COMMISSION HEARING;
LIMITATIONS ON EVIDENCE, WITNESSES PRESENTED AT HEARING - Upon receipt of a
timely request or receipt of the record of proceedings before the appeals
examiner and expiration of the time allowed for interested parties to
request a hearing, the Commission shall review the matter to determine
whether the interests of justice require the presentation of additional
evidence. If the Commission determines, in its discretion, to grant a
request for hearing to permit receipt of additional evidence, all parties
shall be promptly notified. The commission may limit the evidence to be
presented and may specify the witnesses who are permitted to testify. The
Commission may also refer the matter back to the Appeals Examiner for
further proceedings.
TEN (10) DAY NOTICE OF HEARING REQUIRED; TRANSCRIPT OF HEARING - If the
Commission allows a hearing before the Commission, it shall give at least
ten (10) days written notice of the time and place of hearing and of the
issues to be heard, either by personal service or registered or certified
mail. A stenographic or machine-recorded transcription of any testimony
presented at any hearing shall be taken.
HEARING NOT REQUESTED OR HEARING REQUEST DENIED - If no hearing is
requested, or a request for hearing is denied, the Commission shall decide
the claim for review upon the record of proceeding before the appeals
examiner. The Commission may request briefs based on the evidentiary record
in lieu of granting a hearing.
RULE 7
EVIDENCE AND WITNESSES
RECORD OF EVIDENCE; WRITTEN ARGUMENT - The record of evidence before the
Commission shall consist of either the tape recording or the transcript of
any hearing conducted by the appeals examiner, together with the exhibits
admitted into evidence by the Appeals Examiner and the testimony and
exhibits presented to the Industrial Commission at its hearing, if one is
held. The Commission may also consider written argument submitted by any
interested party. Written argument must be based upon evidence established
in the record. Hearsay evidence, standing alone, is not sufficient to
support findings in an administrative hearing.
WITNESS FEES AND MILEAGE TENDERED ON REQUEST; AMOUNT OF WITNESS FEES AND
MILEAGE; SERVICE OF SUBPOENAS - No person shall be required to attend as a
witness in any proceeding before the Industrial Commission unless lawful
mileage and a witness fee for one day’s attendance shall be first tendered
upon request. Witness fees and mileage shall be in the amount provided by
law for a witness in the district courts of this state and shall be paid by
the party on whose behalf the witness is subpoenaed. Service of subpoenas
shall be accomplished in the manner provided by law for the service of
subpoenas in civil proceedings in the district courts of this state.
COMMENT: Subsection (A) is based on the Idaho Supreme Court’s holding
that hearsay evidence--standing alone--is not sufficient to support the
findings in an administrative hearing. Application of Citizens Utilities
Company, 82 Idaho 208, 351 P.2d 487 (1960).
RULE 8
REPRESENTATION OF PARTIES BEFORE COMMISSION
NATURAL PERSONS - In all matters, any party who is a natural person may
appear in person or by an attorney. A claimant may be represented by an
attorney or other duly authorized agent.
EMPLOYERS - Employers who are natural persons may represent themselves or
be represented by an attorney. Employers who are partnerships shall be
represented by a partner or by an attorney. Employers who are corporations
or associations must be represented by an attorney.
LICENSED IDAHO ATTORNEY - All attorneys representing parties before the
Commission shall be licensed to practice and actively practicing law in the
state of Idaho. Attorneys representing parties before the Commission shall
file with the Commission a Notice of Appearance.
FILING A NOTICE OF APPEAL - Any party may file a notice of appeal on its
own behalf. In the case of corporations, a corporate officer may file a
notice of appeal on behalf of the corporation. Appeals submitted by employer
representatives, who are not attorneys, will not be considered.
COMMENT: Subsection (A) allows claimants to choose "other duly authorized
agent[s]" but does not extend this to employers. See Idaho Code §
72-1375(2). Therefore, an employer representative who is not a licensed
attorney in the State of Idaho may not represent an employer. Representation
of another person before a public agency or service commission constitutes
the practice of law where the proceedings before those tribunals are held
for purposes of adjudicating the legal rights or duties of a party. Kyle v.
Beco. Corp., 109 Idaho 267,707 P.2d 378 (1985), Idaho State Bar Association
v. Idaho Public Utilities Commission, 102 Idaho 672, 637 P.2d 1168 (1981),
Weston v. Gritman Memorial Hospital, 99 Idaho 717, 587 P.2d 1252 (1978).
RULE 9
CHANGE OF ATTORNEY/ATTORNEY WITHDRAWAL
SUBSTITUTION OF COUNSEL - The attorney of record for a party to an appeal
may be changed or a new attorney substituted by notice to the Commission and
to all parties, which is signed by both the withdrawing attorney and the new
attorney, without first obtaining leave of the Commission. If a new attorney
appears in an appeal, the appeal shall proceed without delay, unless the
Commission finds good cause for delay of the proceedings.
LEAVE TO WITHDRAW - Except as provided in subsection (A) above, or by
stipulation between an attorney and the client and upon order of the
Commission approving said stipulation, no attorney may withdraw as an
attorney of record without first obtaining leave and order of the Commission
upon a motion, supported by affidavit, filed with the Commission and
serviced on all parties to the appeal, including the client. The Commission
may grant leave to withdraw as counsel of record for good cause and upon
such conditions as will prevent any delay in determination and disposition
of the pending appeal. Notwithstanding this provision, a claimant who
intends to terminate the service of his or her attorney of record and to
proceed pro se may do so by giving written notice to the Commission, the
claimant’s attorney of record, and all parties that the claimant will no
longer be represented by counsel and will represent himself or herself.
NOTICE TO CLIENT OF WITHDRAWAL - If an attorney is granted leave to
withdraw, the Commission shall enter an order permitting the attorney to
withdraw. After the order is entered, the withdrawing attorney shall
promptly serve a copy of the order upon the attorney’s former client and
file proof of service of the same with the Commission. The withdrawing
attorney shall make such service upon his or her client as is most likely to
give actual notice to the client. Such service may be made by personal
service or by certified mail to the client’s last-known address. Service by
certified mail shall be complete upon mailing. Upon the entry of an order
granting leave to an attorney to withdraw from an appeal, no further
proceedings can be had in that appeal which will affect the rights of the
client of the withdrawing attorney for a period of 21 days after service of
the order of withdrawal.
WITHDRAWAL UPON DEATH, EXTENDED ILLNESS, ABSENCE, SUSPENSION OR
DISBARMENT OF ATTORNEY - In the event of the death, extended illness,
extended absence, suspension or disbarment from the practice of law of an
attorney of record in an appeal, if such attorney has not indicated on his
or her appearance that the attorney is associated with a partnership, firm,
corporation or other attorneys in the appeal, then no further proceedings
can be had in such appeal that will affect the rights of the party
represented by such attorney for a period of 21 days after the order has
been served as provided in this rule.
COMMENTS: Subsection (A) allows a substitution of counsel without leave
of the Commission where the party is not prejudiced
Subsection (B) addresses attorney withdrawal and requires either a
stipulation approved by the Commission or a motion thereon prior to
withdrawal.
Subsection (C) sets forth the withdrawing attorney’s responsibilities to
notify the former client. It prohibits further proceedings for three weeks
to allow the client reasonable time to retain new counsel.
Subsection (D) addresses what may be considered involuntary attorney
withdrawal and prohibits further proceedings for three weeks to allow the
client reasonable time to retain new counsel.
RULE 10
COMMISSION PROCEDURE
MATTER MAY BE HEARD BY COMMISSION OR ASSIGNED TO REFEREE; POWER TO HEAR
CLAIMS FOR REVIEW, SUBPOENA WITNESSES, ADMINISTER OATHS, TAKE TESTIMONY,
ISSUE SUBPOENA DUCES TECUM, EXAMINE BOOKS AND RECORDS; ENFORCEMENT
PROCEEDINGS - Any matter upon which a claim for review has been filed with
the Commission may be assigned, by the Commission, to a single Commissioner
or to a Referee, or the matter may be heard by the Commission. The
Commission or any member thereof, or any Referee appointed by the
Commission, shall have the power to subpoena witnesses, administer oaths,
take testimony, issue subpoena duces tecum, and to examine such of the books
and records of the parties to proceeding as relates to the question in
dispute. Proceedings for enforcement shall be as provided in Idaho Code § §
72-1338 and 72-1339.
PRE-HEARING CONFERENCE - The Commission, or any Commissioner or Referee
to whom a case is assigned, may direct the parties to appear for a
pre-hearing conference to consider any matters that may aid in the
disposition of a case.
ORDER OF TESTIMONY - At any hearing, the party requesting review of the
decision of the appeals examiner may be called upon to present its evidence
first. The respondents may then present their evidence. The parties may then
respectively offer rebuttal evidence. The parties may also request the
opportunity to submit written arguments following the hearing.
REVIEW BY COMMISSION OF COMMISSIONER’S OR REFEREE’S FINDING, ORDER OR
DECISION; ADOPTION OF FINDING, ORDER OR DECISION BY COMMISSION - If the
matter is assigned to a single Commissioner or Referee, he or she shall make
recommended Findings of Fact and Conclusions of Law, and the Proceedings
shall then be submitted to the Commission for its review. Every finding,
order, or decision of a single Commissioner or Referee, when approved and
confirmed by the Commission and ordered filed in its office, shall be deemed
to be the final order or decision of the Commission.
RECONSIDERATION - Motions for reconsideration shall be in writing and
specifically identify the legal justification upon which the motion is
based. The request for reconsideration must be filed within twenty (20) days
from the date of filing of the Commission’s decision and order, and served
on all interested parties.
COMMENT: A request for reconsideration is a request that the Commission
reexamine its decision in light of additional legal arguments, a change in
law, a misinterpretation of law, or an argument or aspect of the case that
was overlooked. A request for reconsideration that is based on a legal
argument which could have been raised earlier in the proceeding will not
ordinarily be granted. The intent is to provide a definite format for legal
critique but discourage reactionary and insubstantial motions when a party
merely wants the Commission to "think it over again."
RULE 11
REMANDS
STANDARDS FOR REMANDING CASES - The Commission may remand cases to the
Department of Commerce & Labor in the following situations:
Where the decision below does not set forth specific findings of fact;
Where a party did not appear for the Department of Commerce & Labor
hearing and has established good cause for the absence;
Where the Commission grants a new hearing request pursuant to RULE 6(C);
or
Where other good cause to remand exists.
PERFECTING NEW APPEAL UPON REMAND - When a case is remanded, the
Commission no longer has jurisdiction; therefore, a new request for
Commission review, if desired, shall be filed by an aggrieved party within
fourteen (14) days after the date of service of the Appeals Bureau’s
decision on remand.
RULE 12
SANCTIONS
VIOLATION OF RULES - The Commission retains power to impose appropriate
sanctions for any violation or abuse of its rules. |
