EDWARD L. BOOTH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION9/11/1991
asonable time for those interested to make their appearance. But if with due regard for the practicalities and pecularities of the case these conditions are reasonably met, the constitutional requirements are satisfied.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L.Ed.2d 865, 873 (1950), quoted in Covington, 459 So. 2d at 782.
In view of the foregoing, one may conclude that notifying the claimant (client) only and not the attorney would satisfy
minimum due process requirements so long as such notice is" reasonably calculated "to apprise the claimant of necessary information. Therefore, this Court at this time does not hold that there is a constitutional requirement for notice to the attorney for the claimant as long as notice to the claimant is" reasonably calculated "to apprise the claimant of necessary information. However, this Court strongly recommends to the Commission that it consider amending its procedural rules to require notice to both a claimant and the attorney of record for the reason set forth in the Mountain States case.
However, an administrative board must afford minimum procedural due process under the Fourteenth Amendment to the United States Constitution and under Art. 3, 14 of the Mississippi Constitution consisting of (1) notice and (2) opportunity to be heard. State Oil & Gas Board v. McGowan, supra, at 248; citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L.Ed.2d 628 (1985); Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L.Ed.2d 139 (1984); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972). This process is required in cases in which a right or interest requiring constitutional protection is involved." Unemployment benefits are of the same nature, for purposes of this analysis, as welfare or other public assistance benefits . . . and therefore, rise to the level of constitutionally protected property rights. "Perry, 523 A.2d at 1243.
The Board of Review makes its decision on the basis of the evidence previously submitted before the Referee, or by directing the taking of additional evidence. Miss. Code Ann. 71-5-523 (1972). Its findings of fact, if supported by substantial evidence and in the absence of fraud, are conclusive. Miss. Code Ann. 71-5-531 (1972). As the factfinder in this progression of hearings, the Board of Review offers the last opportunity that a claimant has to affect the factual findings of the case. Appeals to the Circuit Court and Supreme Court are based on the record. For this reason the last opportunity to present argument, orally or by written brief, to the Board of Review as the factfinder is a crucial juncture in the appeals process.
The Court holds that sufficient notice to the claimant was given for the Board hearing, and that substantial evidence exists to uphold the MESC ruling. The Court therefore affirms the Circuit Court, but recommends to the MESC that it re-evaluate its rules regarding notice and process.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS AND DAN LEE, P.JJ., ROBERTSON, SULLIVAN, PITTMAN, BANKS AND McRAE, JJ., CONCUR.
FOOTNOTE 4 Booth explains that, because his attorney received no notification, he was not provided an opportunity to attend the Board hearing and, therefore, was unable to exercise his right to question the impartiality of the MESC Board members and defend his position. He contends that the absence of his attorney from the hearing left the Board with" arbitrary uncontrolled discretion. "Appellant's Brief at 13-14. In short, Booth contends that unemployment benefits are a property interest of which the federal
Page 1 2 3 4 5 6 Mississippi DUI Attorneys
DUI Lawyers
|