This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Nancy Ostergaard,





Commissioner of the Minnesota

Department of Human Services,



Filed December 6, 2002


Willis, Judge

Dissenting, Minge, Judge


Department of Human Services

File No. 112361



Eric P. Johnsrud, Pflughoeft, Pederson & Johnsrud, 160 Lafayette Street, P.O. Box 436, Winona, MN  55987-0436 (for relator)


Charles E. MacLean, Winona County Attorney, Susan E. Cooper, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN  55987 (for respondent)


Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




            On appeal by writ of certiorari from respondent’s order revoking appellant’s family child-care license, appellant argues that the appeal process set forth in Minn. Stat. § 245A.07, subd. 3(a) (2000), violated procedural due-process rights.  Because the challenged statute adequately protected procedural due-process rights, we affirm.



            On March 20, 2002, appellant Nancy Ostergaard received notice from respondent Commissioner of the Minnesota Department of Human Services revoking Ostergaard’s child-care license because Winona County Human Services determined that (1) she had inadequately supervised children under her care and (2) she had allowed a family member to move into her home and work with children without undergoing the mandatory background investigation.  The notice informed Ostergaard that if she chose to appeal the revocation her appeal had to be in writing, sent by certified mail, and received by the commissioner within 10 calendar days after Ostergaard received the revocation notice, in this case no later than March 30, 2002. 

            On March 26, Ostergaard sent an appeal by certified mail, and the commissioner received it on April 2.  Because the appeal was received after the time limit prescribed by Minn. Stat. § 245A.07, subd. 3(a) (2000), the commissioner notified Ostergaard that the appeal would not be accepted.  This appeal follows.


            Ostergaard challenges the constitutionality of Minn. Stat. § 245A.07, subd. 3(a) (2000), which has since been amended, arguing that its appeal procedure violated procedural due-process rights.  This court reviews de novo the procedural due process afforded a party.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Statutes are presumed to be constitutional, and a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989); In re Tveten, 402 N.W.2d 551, 556 (Minn. 1987).

            The parties agree that Ostergaard did not comply with the statutory procedures for appealing the revocation of her family child-care license.  But Ostergaard contends that Minn. Stat. § 245A.07, subd. 3(a), was unconstitutional because the statutory requirement that a licensee rely on the United States Postal Service to deliver an appeal within a 10-day time limit deprived the licensee of the ability to ensure compliance with the appeal deadline.  Ostergaard claims, therefore, that the appeal procedure required by Minn. Stat. § 245A.07, subd. 3(a), did not provide constitutionally adequate procedural due process. 

            The procedural due-process protections granted by the United States and Minnesota constitutions are identical.  Fosselman v. Comm’r of Human Servs., 612 N.W.2d 456, 461 (Minn. App. 2000).  This court uses a two-step process to analyze a claim of denial of procedural due process.  Humenansky v. Minnesota Bd. of Med. Exam’rs, 525 N.W.2d 559, 566 (Minn. App. 1995), review denied (Minn. Feb. 14, 1995).  “First, we consider whether a substantive right of life, liberty or property is implicated.”  Olson v. Ford Motor Co., 558 N.W.2d 491, 497 (Minn. 1997) (citation omitted).  Second, if a substantive right is implicated, we must then “balance the interests of the individual and the risk of erroneous deprivation of such interests, against the governmental interests at stake.”  Id. (citation omitted); see also Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 903 (1976) (describing balancing test used in procedural due-process cases); Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 906-08 (Minn. 1996) (applying due-process analysis to challenge of teaching-license revocation). 

            The parties agree that a family child-care licensee has a protected interest in retaining the license.  Accordingly, we must balance the likelihood that the challenged procedure would erroneously deprive a party of a protected interest against the state’s interest in using that procedure.  Ostergaard contends that the statute’s appeal process was likely to result in the erroneous deprivation of a protected interest because a delay by the postal service in delivering an appeal could deprive a licensee of the opportunity to have a contested-case hearing in the event of a license revocation.  Nevertheless, to provide adequate procedural due process, the procedures used need not “be so comprehensive as to preclude any possibility of error.”  Mackey v. Montrym, 443 U.S. 1, 13, 99 S. Ct. 2612, 2618 (1979).  Obviously, Minn. Stat. § 245A.07, subd. 3(a), placed a burden on a licensee to promptly mail an appeal to the commissioner, and it clearly placed the risk of postal service delay on the licensee, rather than on the commissioner.  “[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”  Mathews, 424 U.S. at 344, 96 S. Ct. at 907.  Nothing in the record suggests that licensees generally had difficulty complying with the appeal requirements of the statute.

            The risk of erroneous deprivation of a licensee’s protected interest must be balanced against “the Government’s interest [in using the challenged procedure], including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  Id. at 335, 96 S. Ct. at 903 (citation omitted).  Here, the government’s interest was protecting the health and safety of children at state-licensed day-care facilities by quickly resolving licensing disputes.  See Human Services Licensing Act, Minn. Stat. §§ 245A.01-.65 (2000); cf. id. § 245.461, subd. 2(2) (2000) (defining commissioner’s mission under comprehensive Adult Mental Health Act as promoting the health and safety of adults with mental illness).  The Minnesota Supreme Court has recognized that the state is accorded “great leeway in adopting summary procedures to protect public health and safety.”  Heddan v. Dirkswager, 336 N.W.2d 54, 62 (Minn. 1983) (quoting Mackey, 443 U.S. at 17, 99 S. Ct. at 2620).

            Ostergaard suggests that to save the statute’s constitutionality, this court should imply a “postmark rule” in interpreting Minn. Stat. § 245A.07, subd. 3(a), holding that an appeal was timely if it was postmarked within 10 days after a licensee’s receipt of a revocation notice.  We recognize that the legislature has now amended the statute to include such a postmark rule.  See 2002 Minn. Laws ch. 396, § 3.  But this court cannot supply to the statute, in the form in which it existed at all times relevant here, language that the legislature omitted from it.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Nor can this court denigrate the government’s interest in resolving licensing disputes quickly because of the subsequent amendment of the statute.  Furthermore, there is no basis for applying the 2002 version of the statute retroactively.  See Minn. Stat. § 645.21 (2000) (“No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.”).

            Because the commissioner’s interest in expeditiously resolving licensing disputes outweighed the minimal risk that the statute would cause an erroneous deprivation of a protected interest, we conclude that Minn. Stat. § 245A.07, subd. 3(a), provided constitutionally adequate procedural due-process protections.



MINGE, Judge (dissenting)

            I respectfully dissent.  There appears to be agreement that relator’s property interest in her business is entitled to constitutional due process protections.  The only issue is what process is due.  The opportunity to present reasons to an agency as to why action should not be taken is a core procedural due process safeguard.  See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976); see also Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970); see also Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975).  An unworkable process for requesting a hearing is a grave defect.

            In this case the statute required that the notice of appeal be sent by certified mail.  The legislature conclusively assumed the United States Postal Service would promptly deliver the mail and placed the risk of late delivery entirely on the appellant.  Unfortunately, it took seven days for relator’s request for a hearing to travel from Winona to St. Paul.  Forcing the relator to bear the loss of a constitutional right to a hearing because of late delivery by the U.S. Postal Service is unreasonable and burdensome.  It is of considerable interest that the statutory amendment cited by the majority changes the procedure for requesting a hearing in this type of case.  This change in the law indicates that the state does not have a serious interest in the old procedure that outweighs the appellant’s interest in a fair and reasonable process for filing her notice of appeal.

            I would reverse and grant relator an opportunity for a hearing.