June 6, 1983
Mrs. Judith Meierhenry
Secretary
South Dakota Department of Labor
Kneip Building
Pierre, South Dakota 57501
Official Opinion No. 83-23
Transcripts of Hearings
Dear Mrs. Meierhenry:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The Department of Labor has occasion through its Division of Unemployment Compensation to conduct administrative appeals. Hearings in these appeals are conducted by Appeals Referees which are personnel of the Labor Department. All testimony at these hearings is recorded on magnetic tape. Various provisions of South Dakota Codified Laws govern conduct of these hearings and appeal from the decision of the Appeals Referees is to the Secretary of Labor. There is statutory provision for appeal from the decision of the Secretary of Labor to the circuit court. SDCL 61-7-21 prohibits and Labor Department from charging a claimant fees in any proceedings conduct under Title 61 (Unemployment Compensation). The Administrative Procedures Act (SDCL 1-26) and Supreme Court Rule 82-35 require payment of costs by the appealing party in administrative appeals to circuit court.
Based on the foregoing, you have asked the following question:
QUESTION:
Would an arrangement by the Labor Department, with an independent court reporter/typist, for the preparation of transcripts of proceedings had in contested unemployment insurance cases for purposes of appeal to circuit court, by the terms of which arrangement the reporter/typist would charge the ordering party directly, be “charging of a fee by the Labor Department” as that expression is used in SDCL 61-7-21?
Unemployment insurance appeals to circuit court from a final decision of the Labor Department are governed by statutes appearing under three separate titles of the South Dakota Code. Under Title 61 (Unemployment Compensation) at Section 61-7-14, provision is made for appeal as provided by Chapter 1-26 (Administrative Procedure).
Under Title 1, (State Affairs and Government) at Section 1-26-32.1 provision is made as follows:
Procedural rules applied. The sections of Title 15 relating to practice and procedure in the circuit courts shall apply to procedure for taking and conducting appeals under this chapter so far as the same may be consistent and applicable, and unless different provision is specifically made by this chapter or by the statute allowing such appeal.
Supreme Court Rule 82-35, effective date January 15, 1983, has suggested cross-references to, and pertains to the same subject matter as SDCL Title 15 (Civil Procedure).
In interpretation of statutes, attempt must be made to reconcile the provisions, if possible, and if not reconcilable, rules of statutory construction are applied. Two of those rules are: the specific prevails over the general, and the later is an implied repeal of the earlier.
SDCL 61-7-8 provides, in part, as follows:
. . . A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.
SDCL 1-26-22 provides:
Whenever a party requests in writing that oral proceedings be transcribed, a verbatim record of all proceedings and testimony shall be kept by the agency. Unless otherwise provided by law the agency shall not be required to transcribe the record unless the requesting party tenders and pays the reasonable cost thereof. If transcribed, a copy of the record shall be furnished to any other party to the hearing at the request and expense of such other party. If no verbatim record is transcribed, the agency shall prepare minutes of the hearing. The minutes shall consist of a written summary of the evidence and proceedings.
SDCL 1-26-33 provides that the entire record be transmitted to the reviewing court on appeal.
SDCL 1-26-21 defines 'record' in a contested case as:
The record in a contested case shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received and considered;
(3) A statement of matters officially noticed hich have been refuted;
(4) Questions and offers of proof, objections, and ruling thereon;
(5) Proposed findings and exceptions;
(6) Any decision, opinion, or report by the officer presiding at the hearing;
(7) All staff memoranda or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
Supreme Court Rule 82-35, provides, in part, as follows:
Request for Transcript--Waiver by Failure to Request. Within ten days after the filing of the notice of appeal, the appellant shall order from the agency or reporter, if present, a transcript of the proceedings or such parts thereof as he deems necessary, or a copy of the tape recording of the contested case hearing. The order shall be in writing and a copy thereof shall be served on all parties to the action and a copy shall be filed with the clerk of the circuit court. Failure to order a transcript or a copy of the tape recording within the ten day period shall constitute a waiver of the right to such a transcript or a copy of the tape recording.
If the appellee deems a transcript of other parts of the proceedings necessary or a copy of the tape recording of the contested case hearing, he shall, within ten days after the service of the appellant's request or statement of issues, file with the clerk of the circuit court and serve upon the appellant a request for a transcript of additional parts to be included in the transcript or a request for a copy of the tape recording of the contested case hearing. Failure to order such additional parts of the transcript or a copy of the tape recording shall constitute a waiver of the right to such additional parts of the transcript or a copy of the tape recording. (Suggested cross-reference: § 15-26A-48; § 15-26A-49; § 15-26A- 50.)
Costs of Transcript-Endorsement of Order by Reporter--Extension of Time for Transcript. At the time of ordering a transcript or tape recording of the contested case hearing a party, other than an agency, must make satisfactory arrangements with the agency or reporter, if present, for the payment of the costs of the transcript or the duplication of the tape recording and all necessary copies. The agency or reporter shall acknowledge at the foot of the order receipt of the request for the transcript or duplicate tape recording and transmit the order to the clerk of the circuit court. If the transcript or duplicate tape recording cannot be completed within thirty days, the agency or reporter shall request an extension of time from the circuit court judge assigned to the appeal and the action of the circuit court judge shall be entered on the record and the parties notified. (Suggested cross-reference: § 15-16A-51.)
On the basis of the above quoted statutes and court rule it is my opinion that there is no statutory requirement that a transcript be, in all cases, provided to the court on appeal of an unemployment insurance contested case. The reason for that opinion is that under the provisions of SDCL 1-26-22 the agency is not obligated to have a court reporter present and not obligated to provide a transcript unless the requesting party tenders and pays the reasonable cost thereof. A further reason for that opinion is that the language of Supreme Court Rule 82-35 appears to contemplate that a reporter may not have been present at the hearing and that if no reporter was present a duplicate tape recording may be substituted for a transcript.
It is my further opinion that in a case where the testimony is taken on magnetic tape, and no reporter is present, a copy of the tape fulfills the requirements of statutes, and the requirement of Supreme Court Rule 82-35 is both more specific and later in time than SDCL 61-7-21, and prevails over, and impliedly repeals 61-7-21 as to the requirements of that rule. It is therefore my opinion that the Labor Department can charge the requesting party the reasonable cost of duplicating the magnetic tape.
It follows that it is my opinion that there exists no logical reason for the Labor Department to make any arrangement of the nature suggested in your inquiry, and that for the Department to become involved in making such an arrangement would be beyond the requirements of Supreme Court Rule 82-35, and would be 'making a charge' and would be in violation of SDCL 61-7-21.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
