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FILED JUN 1, 2016
OFFICE OF THE:. CLERK SUPREME: COURT
COURT OF APPEALS
MAXINE SMITH
IN =S.=I :; : ~IORIGINALPELIANT vs. CASE NO. 2014-cl=-01510~~
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY (:HDES)
RESPECTFULLY,
DATE:
"PETITION FOR CERTIORARI REYIIW"
MOTION# 2016
MAXINE SMITH, APPELLANT/ PETITIONER 4147 AIRPORT ROAD
M:>RTON, MISSISSIPPI 39117 PHONE NO. 601-732-6112
APPELLEE
I I I I I I I I I I I I I I
MAXINE SMITH
IN THE SUPREME COURT OF MISSISSIPPI MISSISSIPPI COURT OF APPEALS
APPELLANT
vs. CASE NO. 2014-CA-01510-COA
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY (MOES)
"PETITION FOR CERTIORARI REVIEW"
APPELLEE
I RESPECTFULLY,
I I I
DATE: o G J 1 > /It ( ( I
MAXINE SMITH, APPELLANT / PETITIONER 4147 AIRPORT ROAD
MORTON, MISSISSIPPI 39117 PHONE NO. 601-732-6112
I I I I I I I I I I I I I I I I I I I
The Honorable Court of Appeals decision denying my appeal as untimely, based
its decision on a mere date appearing on a piece of paper (letter, document or
such like kind) which clearly is not proof of anything being or having been
mailed to me or anyone else.
My appeal is based on a date of July 29, 2014 provided by the United States
Postal Service, and clearly pursuant to United States Supreme Court, Supreme Law
of the Land. Please see Exhibit "A", following this page.
Honorable Court of Appeals states on page 5 and 6 of its decision that it
affirms Scott County Circuit Court's dismissal of my appeal yet clearly addresses
the~ 1h.a.t M.QE.S. ~ D.Q. ~ of any "mailing" but further, the opinion states
that a document (paper) containing a m.e.L.,e. ~ is admissible evidence Qi maiJing.
The issue here is that U.S. Supreme Court does NQI recognize such alleged
"evidence".
Court of Appeals has rendered decision in conflict with controlling Federal
Law, the United States Supreme Court, and a fundamental issue of broad public
importance, and particularly proof necessary for establishing ".£L..Q.Q.f. of mailing
date" upon which all citizens may firmly rely as exact proof a document was
actually mailed from the hands of one entity or citizen to another.
The United States Supreme Court provides that the date which may serve as
"Proof" of mailing is the stamped date of the United States Postal Service (U.S.
Mail), appearing on envelope (etc.) sent to another via the United States Postal
Service (U.S. Mail).
The United States Supreme Court does not recognize a date appearing on a
piece of paper (document, letter or other) as having any significance or anything
whatsoever to do with the matter of"~" of mailing.
For all reason set forth herein, and in addition to the fact that my due
process rights are "cut-off" throughout the entirety of my seeking unemployment
benefits which I am entitled. I petition for a Writ of Certiorari for the purpose
of resolving these substantital issues of law of public importance and general
significance.
Respectfully,
Maxine Smith 4147 Airport Road Morton, Mississippi 39117 Phone No. 601-732-6112
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Date I
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"APPENDIX"
1. Copy of Appellant's Motion for Rehearing
2. Copy of Amended Appellant's Motion for Rehearing
3. Copy of Court of Appeals Denial of Appellant's Motion for Rehearing
4. Copy of MOES envelope bearing United States Postal Service stamped date
of July 28, 2014 (also already as Exhibit 1-B in Appellant's Motion for
Rehearing)
5. Appeals Court ruling of May 31, 2016.
Certificate
A copy of Petition for Certiorari Review is given to MOES, P.O. Box 1699, Jackson,
Mississippi 39215-1699, via the United States Postal Service, postage prepaid.
Maxine Smith
4147 Airport Road
Morton, Mississippi 39117
Phone No. 601-732-6112
Date
I I I I I I I I I ''APPENDIX''
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' ' ' ' ' ' ' I I
MAXINE SMITH
IN THE SUPREME COURT OF MISSISSIPPI MISSISSIPPI COURT OF APPEALS
APPELLANT
vs. NO. 2014-CA-01510-COA
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY (MDES)
RESPECTFULLY,
DATE: 5 · ! 2, (// ~
"ORAL ARGUMENT NOT REQUESTED•
•APPELLANT'S MOTION FOR REHEARING"
MAXINE SMITH 4147 AIRPORT ROAD
MORTON, MISSISSIPPI 39117 PHONE NO. (601) 732-6112
APPELL EE
' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '
Honorable Justices, it is my position that your January 19,
2016 decision affirming Scott County Circuit Court's dismissal of
my appeal is, on its own face, "ERRONEOUS", AND with the Utmost and
all due respect, I am petitioning for rehearing by reason herein:
It appears that ypu have misunderstood what my case styled
MAXINE SMITH VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY is
about, or what my appeal is about, and additionally, what I'm about.
I am Maxine Smith; fired from my job of 25 years where I had
a stain-free/blemish=free record; and Maxine Smith who sought
~ne~ployment benefits via MDES; and was advised that I must file
electronically for benefits along with job search information.
MDES advised me electronically of its denial of benefits, and
advised that I may appeal this denial to Administrative Law Judge
(ALJ) who would subsequently conduct a telephone hearing between
MDES and me, Maxine Smith.
Pursuant to the notice, I prepared materials for ALJ hearing
and sent these to the ALJ for hearing which pµrportea1y- would
transpire between MDES and me, namely Maxine Smith.
A date was set for telephone hearing, and ALJ arrived
appearing totally unprepared to conduct;and postponed hearing
while he attempted to determine what the hearing is all about.
He acknowledged having received my materials which I
prepared for his consideration for my side of the appeals matter;
and advised me that materials I had sent to him were nothing but
MUMBO-JUMBO which he was not going to allow in the record on my
behalfr so therefore I would have absolutely nothing in the record.
' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '
MDES is the only party allowed to place anything in the record.
My due process rights are being cut-off, trampled and effectively
simply tramped.
The ALJ subsequently denied my benefits, and electronically
advised me of his denial, and that I may appeal to Board of Review.
I appealed to Board of Review, and after a considerable amount
of time had passed without my having heard anything from the Board,
I sent a letter to MDES requesting status of my appeal.
My letter of inquiry to MDES was in an envelope addressed to
MDES and with a United States Postal Service postage stamp to be
to be mailed and delivered via the United States mail.
My letter to MDES landed in the hands of Le Anne F. Brady,
Senior Attorney, MDES.
I was requesting specifically and explicitly that MDES advise
me of the status of my appeal and send each and every document of
any nature to me via the United States Mail U.S. Postal Service.
A copy of her correspindence to me is Exhibit 1-A & 1-B herewith.
You would please notice Date Mailed~ 03/28/2014 (upper left
hand side of decision; Dated and mailed on 03/28/2014(1ower left-
hand side of page; and the word COPY (stamped in red) and Le Anne Brady's note: "mailed 7/29/14"
This is the first time the Board of Review Decision has been sent
to me, and is properly sent to me via United Sta~es Postal_
Service, the way to prove mailing dates via a united States
postal stamp bearing date mailed; proof as required and acceptable
per the United States Supreme Court.
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' ' ' ' ' ' ' ' ' ' ' ' ' ' I I I I '
Early in year 2015, I brought appeal to this appeals c0urt,
by reason my due process rights were being cut-off by reason the
the Scott County Circuit Court dismissed my appeal without notice
to me, without my having opportunity to challenge or contest prior
to Judge's decision on the motion. My claim, in any event, went
unchallenged and uncontested notwithstanding MDES requested
additional time in which to respond; and approximately a year
or more has passed since that time. I obviously prevailed on that
unchallenged/uncontested claim. My due process rights, in any
event, are being cut-off throughout the entirety of my seeking
unemployment benefits, including also, now.
You Honorable Justices affirmed denial of my unemployment
benefits, alleging my appeal being untimely filed; however that
is not the truth, and you have obviously overlooked the fact
that I have presented documented proof (from MDES via the U.S.
Postal Service, United States Mail} that I have "timely'' filed
pursuant to instructions in that docµment (Exhibit 1-A and
Exhibit 1-B herewith). The issue here is not about me, or what I
did or did not do timely or otherwise; but rather where is the
sworn affidavit or whatsoever any other proof .. -bi~h~_MDES:all!ges
t0 have in order to back-up its allegation as to when and how it
provided me with notice of Board Of Review Decision?
I produced my proof, and under the fundamental notion of
fairness and due process, MDES should/must produce its proof if
it has such; however, if there is none, MDES has repeatedly
misled and deceived you.
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Honorable Justices, I respectfully point out that I brought my
proof, but nonethelss, it appears that you clearly assign the burden
of proof to me rather assigning it properly where it belongs to MDES.
You have already acknowledged(in yout decision, pg.6, third
line from top of page and continuing) that it would have been better
if MDES would file something supporting its claim of mailing etc.
I very much would like to know why MDES is not assigned any burden.
I respectfully point out that assigning me with the blame for
MDES; and/or assigning me with the burden of proving or backing up
allegations and claims of MDES, is totally unacceptable; and is
totally impermissible, unnecessary, unfair and unconstitutional.
I respectfully point out, and with the utmost and all due
respect, MDES is being treated with undeserved favor, and not bei~g
required or made to give an accounting of its acts and actions and
face answers and consequences for its acts/actions.
Notwithstanding that de novo review is allegedly been taken
upon my sppeal of ALJ/Board of Review decision, your January 19,
2016 decision is still (on its face) "erroneous"; and I hereby
request that you take into consideration all you have learned
herein, and that you direct proper authority to take necessary
action to see to it that I am paid unemployment benefits.
I respectfully remind you that the issue here is clearly not
about anything I have done or not done, timely or otherwise. Timely
is clearly not a matter here for discussion or mention at all.
I respectfully point out that your application of Mississippi
Rule of Evidence 803(6) does not support MDES'S failure to prove
alleged mailing claim; and allowing a paper to serve as proof
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of. mailing is totally contradiction of the United States Supreme
Court which requires that United States Postal Service stamped
mail is the acceptable proof of mailing.
It is my position that you have effectively put me on trial
notwithstanding that I am the sole/only party (individual/person)
who has done each and everything right, exactly when I was
required to do it; I've brought documented proof, per the United
States Postal Service(proof of mailing pursuant to the United
States Supreme Court's standard requirement).
I respectfully point out also that you erred by failing to
hold MOES accountable for its failures, by not putting MDES on
trial, and requiring MDES effectively "prove" or "lose".
You would please vacate your January 19, 2016 decision, and
simply "do over" your review, and put the proper party. on trial, ,·
that party being namely, MDES. That is the right thing to do.
I humbly beseech you to do the right thing; you have the power.
Will you please do it, make right a wrong against me? Please.
Thank You. • 1 ~ .,_ , /,. l I
/·1 , r
/~-~ i0i:v,_\ L .. Maxine Smith, Appellant
Date: January 28, 2016
Phone:(601) 732-6112 4147 Airport Road Morton, Mississippi
CERTIFICATE 39117
A copy of this Motion For Rehearing is given MDES via U.S.
Mail, postage prepaid, at the address: P.O. Box 1699, Jackson,
Miss~~+~P~- ,39_2~5'"-~699. / ! L'-"-'-'-·-·rv----7),7~"(-L 4147 Airport Road, Morton, MS. 39117 01/28/2016 Phone No.(601) 732-6112
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Mississippi Department of Employment Security
Phil Bryant
July 29, 2014
Ms. Ruby M. Smith 4147 Airport Road Morton, MS 39117
Governor
Mark Henry Executive Director
Re: Request for Review of Docket #160886
Dear Ms. Smith:
I am in receipt of your correspondence dated July 14, 2014, requesting a status update on your appeal. Upon my review of your case, I found that the Board of Review affirmed the decision of the Administrative Law Judge. This decision was mailed to you on March 28, 2014. (See attached). The decision contained a section titled "Appeal Rights" that stated you could appeal to the Circuit Court of your county by April 17, 2014, which was twenty (20) calendar days from
the date the decision was mailed. However, you failed to do so.
Please be advised that you have exhausted your appeal rights within this Agency concerning your appeal of this matter, MDES Docket #160886; and MDES no longer has jurisdiction. If you disagree with the decision of the Board of Review, you may file an appeal with the Scott
County Circuit Court.
Should you have any questions, please feel free to contact the MDES Office of Legal Affairs at
your convenience.
Sincerely,
'1J.f_ ~;)t~ (~)3Yady
Senior Attorney
LFB:acc
Increasing Employment in Afississippi
1235 Echelon Parl,."Way • Jackson, Mississippi 39213 Post Office Box 1699 • Jackson, Mississippi 39215-1699 • (601) 321-6074 • FA.X (601) 321-6076
MDES is an Equal Employment Opportunity Employer
Mississippi Department of Employment Security I M i D; E ; S :
BOARD OF REVIEW DECISION BOR
Date Mailed: 03/28/2014 Docket Number: 160886
APPELLANT
Claimant SSN: ***-**-4996
RUBY SMITH 4147 AIRPORT RD MORTON MS 39117-9540
PARTIES INVOLVED.
OPPONENT
MOES EAN: 90-10800-0-00
SCOTT REGIONAL HOSPITAL PO BOX 1909 MADISON MS 39130-1909
This matter came before the Board of Review for consideration of an appeal filed on 02/19/2014, regarding the decision of 02/06/2014 by an Administrative Law Judge of the Mississippi Department of Employment Security.
I
On 03/07/2014, after careful review and consideration of all the evidence, the Board of Review adopts the Findings of Fact and Opinion of the Administrative Law Judge and hereby affirms the decision.
SO ORDERED AND ADJUDGED, THIS THE 7 DAY OF MARCH, 2014.
· '. ex~,~·, ""?·· APPEAL RIGHTS, .... I
An appeal may be filed in the Circuit Court in the county in which you reside by 04/17/2014, which is 20 calendar days from the date this decision was mailed. Appeals filed by individuals or organizations not residing in Mississippi should be filed in the county where the employer resides, where the cause of action occurred, or in the county of employment.
Please send a copy of your appeal t9:
MOES Legal Department, PO Box 1699, Jackson MS 39215-1699.
Claimant Instructions: Should an appeal be filed and you remain unemployed, you should continue to file weekly certifications until you receive a decision from the court. In the event the court rules in your favor, benefits will be paid only for those weeks you have
filed, if otherwise eligible.
Dated and mailed on 03/28/2014.
1486 www.mdes.ms.gov
COPY h,o\t\ed -z/z.or/1y
1- ~
1111111111111111 Ill Ill 16947875
R-0712010
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' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' '
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-01510-COA
MAXINE SMITH
v.
MISSISSIPPI DEPARTMENT OF El\1PLOYMENTSECURITY
DATE OF JUDGMENT: TRL.\L JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE: TRIAL COURT DISPOSITION:
DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:
APPELLANT
APPELLEE
09/25/2014 HON. 11ARCUS D. GORDON SCOTT COUNTY CIRCUIT COURT :MAXINE SMITH (PRO SE) ALBERT BOZEMAN WHITE LEANNE FRANKLIN BRADY ANNA CRAIN CLE1\1MER CIVIL - STATE BOARDS AND AGENCIES APPEAL FROM DEPARTMENT OF EMPLOYMENT SECURITY DECISION DIS:MISSED AFFIRMED - 01/19/2016
BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
11. Maxine Smith, appearing pro se, appeals the decision of the Circuit Court of Scott
County, which dismissed her appeal as untimely. She had appealed the decision of the Board
of Review (Board) of the Mississippi Department of Employment Security (MDES), which
had affirmed the administrative law judge's (ALJ) denial of unemployment benefits.
Agreeing with the circuit court that Smith's appeal to the circuit court was untimely, we
affirm.
' ' ' ' ' ' ' ' ' ' f f ~ ~ ~ ~ ~ ~ ~
STATEMENT OF FACTS AND PROCEDURAL IDSTORY
12. Smith was terminated from Scott Regional Hospital for a HIP AA violation. 1 She had
been employed there for twenty-five years. After her termination, she filed for
unemployment benefits. At a hearing before the ALJ, she was denied benefits. Smith
appealed the decision to the Board, which affirmed, adopting the ALJ's fact-fmding and
decision.
,3. The Board's decision was dated a~dmailed to Smith on March 28, 2014, as was stated
twice in the document. The Board's decision outlined Smith's appeal rights and deadlines,
stating: "An appeal may be filed in the Circuit Court in the county in which you reside by
04/17/2014, which is 20 calendar days from the date this decision was mailed .... " In July
2014, Smith wrote a letter to MDES inquiring about the status of her appeal. On July 29,
2014, l\IDES's senior attorney responded by letter explaining that the Board's decision had
been mailed to her on March 28, 2014, and that her right to appeal with the circuit court
expired on April 17, 2014, twenty calendar days from the date the decision was made.
Attached to the letter was a copy of the Board decision, which, on its face, represented that
it was mailed on March 28.
14. On August 18, 2014, approximately four months past the twenty-day appeal deadline,
Smith filed her appeal with the Scott County Circuit Court. She claimed she never received
the Board's decision until she requested it in July, and her appeal was timely, as she appealed
within twenty days of July 29, 2014 MDES letter. She also challenged her denial of
I The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104--191, 110 Stat. 1936 (1996).
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unemployment benefits.
~5. :MDES responded by filing a motion to dismiss in the circuit court, claiming Smith's
appeal was untimely, to which Smith filed a response. However, the circuit court agreed with
MDES and dismissed Smith's appeal as untimely. In response, Smith filed a motion to
reconsider, and an amended motion to reconsider, which the circuit court overruled. Smith
then appealed to this Court.
ST Al."\TDARD OF REVIE\V
~6. The standard of review for an appellate court's examination of a circuit court's grant
of a motion to dismiss is de novo. Keyes v. Miss. Dep 't of Emp 't Sec., 95 So. 3d 757, 759
(~4) (Miss. Ct. App. 2012) (citing Smith v. City of Saltillo, 44 So. 3d 438, 440 (15) (Miss.
2010)).
ANALYSIS ,
17. Smith argues the circuit court erred in dismissing her appeal as untimely. She claims
the real issue is that her "due process rights are so 'cut off that [she] only received notice of
the [B]oard's decision per [her] request for it"; and her untimeliness is not the issue. We
disagree.
18. On February 19, 2014, Smith appealed the ALJ's denial of unemployment benefits.
The Board sent Smith an "Acknowledgment of Appeal Filed" document dated February 20,
2014, which stated its decision on her appeal would be "forthcoming." On March 28, 2014,
the Board issued its decision affirming the ALJ' s denial of benefits. The document stated
at its top the "Date Mailed" was March 28, 2014, and at the bottom it stated, "Dated and
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mailed on 03/28/2014." It also explained the appellant's appeal rights and deadlines -
specifically stating the deadline of April 17, 2014 - in connection with a further appeal to the
circuit court.
~9. In contrast, Smith recounts that the first time she learned of the Board's March 28,
2014 decision was after she requested an update on her appeal and an :MDES senior attorney
sent a copy of the decision to her physical home address on July 29, 2014, via United States
Postal Servke mail. She claims she had been "electronically advised" of the ALJ' s denial
of benefits, and she had "electronically reported" her job searches. In her reply brief, she
explains: "[I]t appears that MDES deleted its electronic communications contact route
available for [my] filing and reporting, and [I] was unable to locate anything regarding [the]
Board of Review appeal decision." She also claims she was "now unable to electronically
communicate with MDES." At that point, in July, nearly four months after the appeal
,. deadline, Smith requested :MDES physically mail her the status of her appeal. Smith argues
her appeal is not untimely because it was filed within twenty days of the July 29 mailing .
,rI 0. An appeal of a decision by the Board regarding unemployment benefits is governed
by Mississippi Code Annotated sections 71-5-529 and -531 (Rev. 2011 ). Under these code
sections, Smith had a total of twenty days from the date ofMarch 28, 2014, to appeal to the
circuit court.2 Thus, Smith's appeal should have been received by April 17, 2014, as was
2 Under section 71-5-529, the Board's decision becomes final ten days after the date of notification, and under section 71-5-531, within ten days after the Board's decision becomes final, a party may appeal to the circuit court for judicial review.
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noted in the decision sent to her at her last known address on March 28.3 Smith filed her
appeal with the circuit court on August 18, 2014, over four months late.
,11. Statutory deadlines must be strictly construed unless there is a showing of good cause,
"such as an event affecting a party's right through no fault of the party." Keyes, 95 So. 3d
at 760 (17) (citing Miss. Emp't Sec. Comm 'n v. Powell, 787 So. 2d 1277, 1281 (115) (Miss.
2001)). In Keyes, the claimant filed his appeal one day late and offered no evidence of good
cause; this C:::mrt affirmed the circuit court's dismissal of his appeal. Id. at (,r,r8-9).
Unforeseen circumstances and failure to understand what is required to appeal do not
constitute good cause. Powell, 787 So. 2d at 1281 (,rl6).
,r12. Smith appears to claim that :MDES and the circuit court have purposefully "cut off'
her due-process rights. She accuses the Board of not sending her its decision until she
requested it on July 14, 2014, in spite of the fact the document states the contrary.
Importantly, she offers no proof to support her claims except her own statements. Smith also
complains that her appeal had been filed in the circuit court for thirty days without a response
from :MDES, before it sent an untimely motion to dismiss and prepared order for dismissal,
and Smith had no knowledge of these actions.
,rl3. The copy of the decision by the Board, dated March 28, with the line stating "date
mailed March 28," and resent to Smith by :MDES on July 29, is admissible under the
business-records hearsay exception found in Mississippi Rule of Evidence 803(6). :MDES
3 This address is the same address where the July 2014 notice was sent, and received by Smith, and the same address Smith used in all of her trial court pleadings and appellate documents.
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offered this document as proof that the decision was mailed March 28. However, just
because the document stated it was mailed March 28, the date it was anticipated to be mailed,
does not make it a certainty the document was actually mailed. It would have been better for
:MDES to enter into evidence an affidavit by a person with knowledge of its mailing
procedure in order to show that the document was actually mailed March 28. However, the
document is admissible evidence of mailing.
114. Smith offers no proof of good cause other than her own statement that she never
received the March 28 Board decision. This simply is not enough. See Davis v. Miss. Dep 't
of Emp 't Sec., 147 So. 3d 385, 386-87 (~15, 9) (Miss. Ct. App. 2014) (appellant's claim he
never received ALJ' s decision insufficient to establish good cause); Miss. Dep 't of Emp 't
Sec. v. Good S(!,maritanPers. Serv. lnc., 996 So. 2d 809, 813-14 (,r12) (Miss. Ct. App. 2008)
( employer did not show "good cause" for untimely appeal to Board when it merely presented
two witnesses that testified they never saw notification letter from claims examiner's
decision). The notice clearly states the appeal deadline was April 17, 2014. And yet Smith
waited two more weeks after receiving a copy of the notice in July to submit an untimely
notice of appeal in August. :MDES claims the notice was mailed to her last known address
on March 28, 2014, and the notice states this fact twice. Further, MDES's motion to dismiss
was proper and not untimely.
,rI5. Because the statutory deadlines of sections 71-5-529 and -531 are strictly construed,
and Smith provides no proof of good cause to extend them, we find the circuit court properly
dismissed Smith's appeal as untimely.
6
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116. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS
I AFFIRMED.
I LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR.
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' ' I
MAXINE SMITH
IN THE SUPREME COURT OF MISSISSIPPI MISSISSIPPI COURT OF APPEALS
APPELLANT
vs. NO. 2014-CA-01510-COA
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY
"ORAL ARGUMENT NOT REQUESTED"
"AMENPEP" •APPELLANT'S MOTION FOR REHEARING•
Respectfully,
Maxine Smith 4147 Airport Road
Morton, Mississippi 39117 Phone No. (601) 732-6112
O I / 3o /dolt. r I
APPELL EE
' ' ' ' ' ' ' ' ' ' ' ' f ' ' ' ' ' f
MAXINE SMITH
IN THE SUPREME COURT OF MISSISSIPPI MISSISSIPPI COURT OF APPEALS
APPELLANT
vs. NO. 2014-CA-01510-COA
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY ( MDES)
"ORAL ARGUMENT NQT REQUE5TED"
"A.MENDED" "APPELLANT'S MOTION FOR REHEARING"
APPELL EE
I adopt and reaffirm my previously filed Motion For
Rehearing as though fully copied in all words and phrases therein.
herein, and amend to include materials previously inadvertently
omitted from that Motion For Rehearing, to incl~de all set forth
as follows, beginning with Argument and continuing in its entirety
respectf~lly in the following, numbered pages one(l) thru five(5).
You would please direct your attention to the following
Amended Motion For Rehearing:
ti ~ ,1
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~ ~ ~ ti ,1
~ ~ ~ ~ ~ ~ ~ ~ ~
ARGUMENT
I respectfully reiterate following facts for consideration in
MAXINE SMITH V. MDES:
I am Maxine Smith, a disabled law abiding citizen, human being
resident citizen of the State of Mississippi, fired from my job of
)wenty-five (25) years), former Social Worker with blemish-free;
stain-free record; and not so much as an iota of patient complaint
or any other against me.
Applied to MDES for unemployment benefits; was instructed I
Must file for benefits electronically notwithstanding likely
hardship imposed upon me thereby.
MDES denied benefits and advised I may appeal denial by way
of Administrative Law Judge (ALJ) hearing; and I must notice this
appeal by route of MDES.
Telephone hearing was scheduled for ALJ review, and I was
advised that I may present whatsoever materials I would send for
ALJ consideration.
I sent sµch materials, and was advised by ALJ in a flippant-
sounding tone of voice that my materials were "what" "that
Mumbo-Jumbo?", and in any event, would not be allowed into record.
My due-process rights are being cut-off, right here, right now.
Board of Review acknowledged my appeal, and alleged that
decision would be forthcoming; however, none whatsover came to me,
from Board of Review, not electronically or otherwise mailed.
My due process rights are being cut-off, and Board of Review
had not taken any act or action to stop this cutting off due
process rights, but rather, is upholding ALJ denial of benefits.
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I respectfully point out that I am not provided due process by
an agency of the State of Mississippi, known and dba MDES, in any
matter or regard to my seeking unemployment benefits;my due
process rights are being cut-off; and the result is manifest
injustice, a travesty, inter alia, Constitutionally impermissible
and unacceptable.
Denial of unemployment benefits is a matter which I brought to
Scott County, Mississippi Circuit Court by reason my due process
rights are being cut-off; however, I respectfully point out that
even there, the Honorable Circuit Court failed to acknowledge and
lend credence to my claim of denial of due process, and simply
added to the matter of cutting off my due process rights, dismissed
my claim without first noticing me; and simply never addressing my
claims of due process denial.
I brought my due process denial claim to Mississippi Supreme
Court (which in this matter, Honorable Mississippi Court of Appeals
took jurisdiction of my case),
I respectfully point out that I would not be here today had I
been provided fµndamental fairness and due process guaranteed the
citizenry, including me, Maxine Smith; and I point out, with the
utmost and all due respect that I have been mistreated; as if I
do not exist(according to MDES); but nonetheless, I clearly exist;
I matter; I count; and I am entitled to receive benefits.
It is my position that each/all proceedings already taken
wherein MDES, ALJ, Board ofReview and any/all other/s denying
benefits (decisions all devoid of due process), roust be rendered
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"null and void", and on their very faces adjudged a NULLITY.
Every phase and every step I have taken as herein described
in pursuit of receiving my unemployment benefits are each/all
those wherein/whereby my due process rights are being "cut-off";
and the result of such unacceptable, impermissible, and clearly
unconstitutional denial, is known and described as a convoluted
quagmire, confusing and misleading to those who would view it.
Honorable Justices you advise in your January 19, 2016
decision that you reviewed MAXTNE SMITH v. MDES de novo; and one
of the very first things you state in sub-paragraph 2, pg. 2
thereof, is your allegation and false accusation against Maxine
Smith, erroneously purporting her firing based on HIPAA violation.
That however, is not the truth; did not result from complaint of
or by a patient; nor from any Court proceeding or trial of any
nature or regard, and cannot be proved; has not been proved by
reason no such proof exists; and this HIPAA allegation/accusation
is a perfect example of what results from a quagmire and such
proceedings devoid of due process.
MDES nonetheless, levied that blatanly false allegation and
accusation against me to be construed as alleged reason for denial.
I am, in any event, clearly entitled to have such falsehood
against me stricken from any and all papers, decisions and any
related kind of any nature or regard, forthwith, post haste. The
jurisdiction of this Court already provides that MDES should have
already been directed to stop this falsehood(prove it or remove it).
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I point out that I, Maxine Smith, am the sole/only party to
this matter, with personal, first-hand knowledge of the truth of
each and every fact I bring here; and what I say is my testimony
to the truth.
MDES requested additional time to respond to my claim which
I brought here, early in year 2015, and MDES did not challenge or
contest my claim that my due process rights are being cut-off
notwithstanding its additional time request was in March, 2015;
and my claim remains this day unchallegened/uncontested.
·coNCicIJSION
Prior to coming to this Court, I was requesting that Scott
County Circuit Court review my original denial of unemployment
benefits, de novo.
Circuit Court refused jurisdiction and de novo review; and
I petitioned this Court for review, well over a year ago; and you
advise in your January 19, 2016 decision your exercise of your
de novo review of MAXINE SMITH V. MDES.
Notwithstanding that Mississippi is permitted to "fire at will"
(for no explanation or reason); but "at will" is not permissible in
order for employer to prevent discharged employee from receiving
unemployment benefits.
The issue here however, is clearly not what the alleged reason
for my firing is, but rather "what is the reason I am denied
unemployment benefits?"
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I I I I I I I I I I I I I I I I
I respectfully direct your attention to your statement on pg.2,
paragraph 2, alleging a highly scandalous, defamatory, unfounded,
unproven serious accusation against me purported as HIPAA violation,
in your January 19, 2016 decision; but however, I would not commit,
did not commit such an egregious Act. I simply know and act better
than that; yet you have nonetheless erred first and foremost by
permitting such matter conclusively presumed against me by allowing
it to appear in your decision. You would please strike it post haste.
Inasmuch as you acknowledge de nov~jurisdiction of MAXINE SMITH
V. MDES, you would please forthwith i~s~e your judgment of •MOOT• on
all prior proceedings and denial decisions in MAXINE SMITH v. MDES.
You would also take immediate action ordering MDES to pay her
all unemployment benefits she seeks, and payment of 122 hours of
vacation time.
Thank You. ,.
Respectfully,
;_1Ctwvio~ d~~-1-L Maxine Smith 4147 Airport Road Morton, Mississippi 39117 Phone No. (601) 732-6112
Date: a , / 3,. / "2.o l(l2 I
CERTIFICATE
A copy of Appellant's Amended Motion For Rehearing is given MDES, via U.S. Mail~ postage prepaid, P.O. Box 1699, Jackson, Mississippi 39215-1699.
lh~ /i,,._yL Maxine Smith, 4147 Airport Road, Morton, Mississippi 39117 Pnone No. (601) 732-6112 b/ /s.c/~~,c.
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I I I I I I I I I I I I I I I I I I I
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I I I I I I I I I I I I I I I I I I I
I I I I I I I I I I I I I I I I I I I
Supreme Court of Mississippi Court of Appeals of the State of Mississippi
Office of the Clerk
Muriel B. Ellis Post Office Box 249 Jackson, Mississippi 39205-0249 Telephone: (601) 359-3694 Facsimile: (601) 359-2407
May 31, 2016
(Street Address) 450 High Street Jackson, Mississippi 39201-1082
e-mail:[email protected]
This is to advise you that the Mississippi Court of Appeals rendered the following decision on the 31st day of May, 2016.
Court of Appeals Case # 2014-CP-O 1510-COA Trial Court Case# 2014-CV-252-SC-G
Maxine Smith v. Mississippi Department of Employment Security
The motion for rehearing is denied.
* NOTICE TO CHANCERY/CIRCUIT/COUNTY COURT CLERKS* If an original of any exhibit other than photos was sent to the Supreme Court Clerk and should now be returned to you, please advise this office in writing immediately.
Please note: Pursuant to MRAP 45(c), amended effective July, 1, 2010, copies of opinions will not be mailed. Any opinion rendered may be found at www.mssc.state.ms.us under the Quick Links/Supreme Court/Decision for the date of the decision or the Quick Links/Court of Appeals/Decision for the date of the decision.
