This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-466

 

 

James B. Kelly,

Relator,

 

vs.

 

Commissioner of Economic Security,

Respondent.

 

Filed September 26, 2000

Affirmed

Schumacher, Judge

 

      Department of Economic Security

File No. 330599

 

 

James B. Kelly, 624 Third Avenue Northeast, Osseo, MN 55369 (pro se relator)

 

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent)

 

 

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Relator James B. Kelly challenges a Department of Economic Security determination that $4,965 in erroneously paid unemployment benefits are recoverable under the Revenue Recapture Act. We affirm.

FACTS

Following discharge by his employer, REO Plastics, Inc., Kelly applied for unemployment benefits. Beginning February 7, 1998 and ending May 16, 1998, Kelly received $331 a week in unemployment benefits, for a total of $4,965. REO Plastics appealed from the department's decision granting Kelly benefits. The commissioner's representative determined Kelly was disqualified from receiving benefits because REO Plastics had terminated him for misconduct. In an unpublished opinion, this court affirmed the commissioner's representative's decision disqualifying Kelly from benefits. Kelly v. REO Plastics, Inc., No. C2-98-1170, 1999 WL 203511, at *3 (Minn. App. Apr. 13, 1999), review denied (Minn. July 28, 1999).

Although the commissioner's representative required Kelly to pay back all the benefits he had received, Kelly failed to repay the department. The department filed a notice of claim to recover the amount Kelly owed by garnishing Kelly's current and future state tax refunds, pursuant to the Revenue Recapture Act. Kelly requested a hearing on the department's claim and a reemployment judge determined that the department was entitled to recover the overpayments. The commissioner's representative affirmed and Kelly appeals.

D E C I S I O N

While we defer to the commissioner's findings of fact if they are reasonably supported by evidence in the record, we exercise independent judgment with respect to questions of law. Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Minnesota law provides:

A determination or amended determination that holds an applicant disqualified or ineligible for benefits for periods an applicant has been paid benefits is considered an overpayment of those benefits under section 268.18, subdivision 1.

 

Minn. Stat. 268.101, subd. 6 (Supp. 1999). An individual who receives unemployment benefits he is not entitled to "shall promptly repay the benefits." Minn. Stat.  268.18, subd. 1(a) (Supp. 1999). By operation of the economic security statutes, Kelly is obligated to repay the $4,965 in unemployment benefits he erroneously received.

Under the Revenue Recapture Act, Minn. Stat. 270A.01-.12 (1998 & Supp. 1999), a state agency may satisfy a debt owed to the agency by garnishing a debtor's income tax refund. The Revenue Recapture Act sets out notice and hearing requirements for state agencies to recapture debts by withholding tax refunds. Minn. Stat. 270A.08 (1998 & Supp. 1999). Here, the record shows that the department complied with the statute by sending written notice to Kelly, and affording Kelly a hearing on the department's claim. Kelly's debt is recoverable through the Revenue Recapture Act.

Kelly challenges the constitutionality of the Revenue Recapture Act, alleging it violates the separation-of-powers doctrine. This court recognizes "'Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.'" Bortnem v. Commissioner of Pub. Safety, 610 N.W.2d 703, 706 (Minn. App. 2000) (quoting In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989)), review denied (Minn. Jul. 25, 2000). Kelly makes only bald assertions that the Act violates the separation of powers doctrine and provides no support for his claim. Kelly fails to convince us that the Revenue Recapture Act is unconstitutional.

In his pro se brief, Kelly challenges the amount of the debt he owes, arguing that he has "a correct debt of $4,724.63." Kelly fails to demonstrate how he arrived at this figure. The record shows that Kelly received $331 per week for 15 weeks. The commissioner accurately computed the total overpayment made to Kelly at $4,965.

We must follow the statutory mandate that Kelly return the money he received. Nevertheless, we note that Kelly applied in good faith for unemployment benefits and the government awarded him such benefits. The economic security statute allows the department to rescind the earlier award and demand repayment of benefits--benefits that Kelly likely has already spent. The result is harsh. For the department to grant unemployment benefits, only to revoke them later after they have likely been expended, visits an inequity upon the unemployed recipient.

Affirmed.