Williams v. Oklahoma Employment Security Commission

MEMORANDUM OPINION

CARL B. JONES, Judge:

Appellant Claude Williams made a claim for unemployment benefits after he was discharged from his job as a mail carrier for the United States Postal Service. The Postal Service objected to his claim, asserting Appellant had been discharged for misconduct connected with his work. The Oklahoma Employment Security Commission [“Commission”] agreed and denied Appellant’s claim. Appellant unsuccessfully sought re-, versal of that decision by proceedings before the Commission’s Appeal Tribunal and Board of Review.

On July 19, 1991, within the time provided by 40 O.S.1991 § 2-610(1),¹ Appellant filed a “petition of review” in the trial court against the Commission, the Appeal Tribunal, and the Board of Review. The Commission entered a special appearance and requested dismissal of Appellant’s petition because Appellant neglected to name the Postal Service as a defendant. Appellant responded that all § 2-610 required was timely commencement of an appeal against the Board of Review. Appellant also argued that since the Board had notified the Postal Service of his petition for review there could not be any prejudice from his omission to name it as a party.

On July 31,1992 — over a year after Appellant had filed his petition for review, and in the absence of any ruling from the trial court on the Commission’s jurisdictional challenge — Appellant, through legal counsel, filed a motion to join the Postal Service as a “necessary party,” pleading inadvertence due to his pro se status.

By supplemental brief, the Commission offered this Court’s decision in District Court v. Board of Review, 849 P.2d 1102 (Okla.App.1993), as authority for denying Appellant’s motion to amend. Appellant responded that the Postal Service was only a “nominal party” because the Board of Review has responsibility to answer on its behalf. The trial court denied the motion to amend and dismissed Appellant’s petition for review for lack of jurisdiction.

We are concerned here with the proper effect to be given to § 2-610(1), which provides that one may obtain judicial review of proceedings before the Board of Review “by filing ... a petition for review ... against the Board of Review,” and in the next sentence expressly states that “[A]U parties to the proceeding before the Board of Review and the Commission shall be made codefendants.” Appellant reads the first phrase as making only the Board of Review a “necessary party,” while the Commission urges us to accept the specific wording of the second sentence.

Appellant’s view of necessary and nominal parties is contrary to the Supreme Court’s opinion in Edmondson v. Siegfried Insurance Agency, Inc., 577 P.2d 72 (Okla.1978). The court in that case construed the nearly identical predecessor to § 2-610(1),² and stated:

The judicial review provided by the cited statute is limited to questions of law if the appealed decision is supported by evidence and no fraud exists. It is a special proceeding and the procedural requirements are mandatory. The Oklahoma Employment Security Commission and the Board of Review of that Commission, and any other parties to the proceeding before the Board of Review, are necessary parties and failure by a plaintiff seeking judicial review of a decision by the Board of Review to name necessary parties as defendants in a timely commenced proceeding in the district court is jurisdictional.

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* * * ipjjg terms 0f statute must be complied with before a court can acquire jurisdiction. Necessary parties are clearly indicated and our decision is that the Court does not acquire jurisdiction unless the action is timely brought and all necessary parties are named.

Edmondson, 511 P.2d at 73-74.

Edmondson is distinguishable on its facts because the claimant in that case had omitted the Board of Review itself. As the court noted, the Board was charged with filing a certified record of the proceedings along with its answer, so failing to name the Board meant there would be no appellate record. Id., 511 P.2d at 74.

The Court of Appeals has twice applied Edmondson. In District Court v. Board of Review, supra, the court upheld dismissal of an employer’s petition for review for failure to name the claimant, and extended the rationale of Edmondson to affirm denial of the employer’s motion to amend. In Taylor v. State ex rel. Oklahoma Employment Security Comm’n, 867 P.2d 490 (Okla.App.1993), the court reversed a trial court decision based on an untimely amended petition for review. The court rejected the claimant’s contention that service of the petition and summons on the Board of Review (not named as a defendant in the original petition) was sufficient. Id., 867 P.2d at 492.

The unemployment benefits statutes do not define the word “party,” but it is clear that the Postal Service was a party to the proceedings before the Board of Review, contrary to the assertions made in the dissent. Additionally, the Postal Service must have filed an objection to Appellant’s claim in order to tender the issue of disqualification for misconduct. 40 O.S.1991 § 2-503(5). We also note the Appeal Tribunal decision (the only portion of the unemployment claim proceedings in the record) lists the Postal Service in its caption. Appellant does not contend that the Postal Service was not a party to the Board of Review proceedings, but merely suggests it was not a necessary party.

When the Legislature re-enacted the Employment Security Act in 1980, the judicial review section — which formerly stated that parties before the Board of Review must be made codefendants “in [the] action” — was changed to require that all parties before the Board of Review must be made codefendants “[i]n [the] petition for review.” Compare 40 O.S.1991 § 2-610(1) and 40 O.S.Supp.1976 § 216(d)(7) ['repealed ]. The change in wording and syntax of the statute reinforces the Supreme Court’s conclusion in Edmondson that all parties to the proceedings before the Board of Review must be named in the petition for review, and that omission of any party from the petition creates a fatal jurisdictional defect.

Furthermore, we agree with the reasoning of District Court v. Board of Review and Taylor v. State ex rel. Oklahoma Employment Security Comm’n, that to permit amendment of a petition for review beyond the time for appeal would contravene the express statutory requirement that a petition for review must be filed within ten days after notice of the Board of Review’s decision. Judicial review of a decision of the Board of Review is a special judicial proceeding; the procedural requirements of § 2-610(1) are mandatory. Edmondson, 577 P.2d at 73.

Finally, we reject any suggestion that Appellant’s attempt to amend his petition for review is allowed by the “good cause” exception in 40 O.S.1991 § 2-614. The Court of Appeals has previously allowed untimely filing of a petition for review when the claimant’s attorney mistakenly believed he had thirty days after a Board of Review decision to file a petition for review. Davis v. Oklahoma Employment Security Comm’n, 817 P.2d 741, 743 (Okla.App.1991), cert. denied; but see id., 817 P.2d at 743-44 (Hunter, C.J., dissenting). We find no basis for bringing this case within the scope of the limited holding of Davis. Appellant did not seek to amend his petition for review until over a year after he had filed the original (and only then, it seems, because he had retained counsel to represent him).

The trial court correctly dismissed Appellant’s petition for review for lack of jurisdiction, and also correctly denied Appellant’s motion to amend the petition. The trial court judgment is therefore affirmed.

AFFIRMED.

JOPLIN, J., concurs. HANSEN, P.J., dissents with separate opinion.

1 . “Within the ten (10) days after the day a notice of decision of the Board of Review is mailed to the parties, the Commission, or any party to the proceedings before the Board of Review, may obtain judicial review thereof by filing in the district court of the county in which the claimant resides ... a petition for review of such decision, against the Board of Review. In such petition for review all other parties to the proceeding before the Board of Review and the Commission shall be made codefendants.... The Board of Review shall forthwith send by mail to each other party to the proceeding a copy of such petition, and such mailing shall be deemed to be service upon all such parties....”

2 . 40 O.S.Supp.1976 § 216(d)(7) provided that judicial review of proceedings before the Board of Review could be had by filing "a petition for review of such decision, against the Board of Review, in which action any other parties to the proceeding before the Board of Review, including the Commission, shall be made codefend-ants."