PATRICK J. BLOMME, Respondent, v. INDEP. SCH. DIST. NO. 413 and BERKLEY RISK ADM’RS CO., LLC, Relators.

Decisions of the Workers’ Compensation Court of Appeals (WCCA) are reviewable by this court on certiorari. Minn. Stat. § 176.471, subd. 1 (2016). To effect this review, the writ of certiorari issued by the Clerk of the Appellate Courts and a cost bond must be served upon the administrator of the WCCA within 30 days from service of notice of the WCCA decision. Minn. Stat. § 176.471, subd. 3 (2014) (stating that “[to] effect a review upon certiorari” the party seeking review “shall serve the writ of certiorari and a bond upon the administrator of the [WCCA] within the 30-day period referred to in subdivision 1”).^[1]

On March 16, 2016, relator Independent School District No. 413 filed a timely petition for a writ of certiorari. The School District did not serve a cost bond on the WCCA or pay a filing fee. Instead, the School District filed a Stipulation of Waiver of Appeal Bond, signed by counsel for the parties.

In Dennis v. Salvation Army, we stated that “review [of a WCCA decision] does not come into being – in other words, does not happen – unless and until . . . the cost bond [is] timely served” on the WCCA. 874 N.W.2d 432, 435 (Minn. 2016). Dennis did not, however, address the effect of a stipulated waiver of the cost bond. Id. at 437-38. We therefore ordered the parties to file informal memoranda addressing whether the cost bond required by Minn. Stat. § 176.471, subd. 3, can be waived, and if so, the circumstances under which the court can accept that waiver.

In his memorandum, respondent Patrick J. Blomme acknowledges that in the absence of a bond, the appeal is “not perfected,” and dismissal is required. Blomme notes that in the past we have allowed appeals from the WCCA to proceed, despite the parties’ waiver of the statutory cost bond.

The School District also relies on past practice in accepting bond waivers, citing to In re Petition to Enlarge, etc., County Ditch No. 27, 232 Minn. 329, 45 N.W.2d 555 (1951) (holding that a bond submitted with insufficient surety was not a defect “jurisdictional in character”). The School District argues that Dennis is distinguishable because the appellant in that case “completely failed to acknowledge or satisfy the bond requirements.” The School District also contends that bond waivers should be accepted for policy reasons and consistency, even if Minn. Stat. § 176.471 does not expressly provide for such a waiver.

In Dennis, the appellant, the Salvation Army, did not file a cost bond with the writ papers filed to initiate the appeal. 874 N.W.2d at 434 (“[T]here was something . . . missing from [the] April 28 filing: a cost bond.”). After we notified the parties of the missing bond, the Salvation Army served a cost bond and argued that we could still exercise jurisdiction over the appeal notwithstanding the “imperfect” filing of the cost bond. Id. We disagreed. Relying on the plain language of section 176.471, and the “long-established principle” of strict adherence “to the statutory requirements for appeals from an executive branch agency,” we concluded that “review does not come into being – in other words, does not happen – unless and until both the writ of certiorari and the cost bond are timely served.” Id. at 435.

Thus, Dennis stands for the rule that the plain and unambiguous language of section 176.471 – before its amendment – required service of a cost bond to “effect review” in an appeal from the WCCA. The question here is whether the parties can waive an unambiguous statutory requirement yet still secure this court's authority to review the WCCA decision. We conclude that they cannot.

We have insisted on strict adherence to the statutory requirements for appeals from an executive branch agency. See Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 728 (Minn. 1987) (“The requirements of both the service of the notice of appeal [from the compensation court to the WCCA] and the filing thereof are jurisdictional.”); Kearns v. Julette Originals Dress Co., 267 Minn. 278, 282, 126 N.W.2d 266, 269 (1964) (stating, in holding that the failure to timely file and serve a notice of appeal to the Industrial Commission precluded the court's review, that “many statutes providing for appeals from a lower to a higher administrative agency, or from an agency to the court, have been strictly construed and the time limitations specified held jurisdictional.”). In other contexts, we have referred to strict adherence to statutory requirements as a “condition precedent” to the exercise of our authority over an appeal. See Ceco Steel Prods. Corp. v. Tapager, 208 Minn. 367, 371-72, 294 N.W. 210, 212-13 (1940) (explaining that a statutory requirement to file claims against a surety on bonds furnished by contractor within 90 days of completion and acceptance of the work “is a condition precedent which must be performed before the right to bring action on the bond accrues” and rejecting the finding of waiver as “not sustainable”); see also id. at 372, 294 N.W. at 213 (“Plaintiffs’ causes of action were given them by virtue of the statute; hence the manner and means of enforcement must likewise be in accordance therewith.”).

The School District contends that longstanding practice allows the parties to stipulate to waive a statutory bond requirement, relying primarily on County Ditch No. 27, 232 Minn. 329, 45 N.W.2d 555.^[2] In County Ditch No. 27, an appeal was filed in district court to challenge the decision of the Renville County Board establishing a ditch. Id. at 330, 45 N.W.2d at 556. An appeal bond was filed with the notice of appeal, but no sureties signed the bond even though the county auditor endorsed the bond with the statement that the “bond and the sureties therein are hereby approved.” Id. at 330-31, 45 N.W.2d at 557. Relying on the statute that authorized the appeal if the bond had “sufficient surety,” the County moved to dismiss, arguing that the defective bond “result[ed] in a failure to invest the district court with jurisdiction.” Id. at 331, 45 N.W.2d at 557. We acknowledged that the bond was defective, but concluded that the district court had authority to act. Id. at 333, 45 N.W.2d at 558 (stating that “meeting with exactness the requirements of the statute in every particular would be technical in the extreme” (citing Riley v. Mitchell, 38 Minn. 9, 12, 35 N.W. 472, 473 (1887) (holding in an appeal from the probate court to the district court that a defect in an appeal bond “is a mere irregularity which the respondent, for whose benefit alone the bond is required, may waive, or which the appellate court may allowed to be remedied” assuming “the other proceedings . . . are in due form”)).

County Ditch No. 27 is inapposite for one compelling reason: a timely bond was filed. The bond was incomplete, it is true, but the state of the bond raised a question akin to substantial compliance. See Safety Signs, LLC v. Niles-Wiese Const. Co., 840 N.W.2d 34, 38 (Minn. 2013) (“The ... question before us is . . . whether substantial compliance with the statutory notice [to a surety] requirement is sufficient.”). Here, in stark contrast, no bond was filed. We cannot equate a form deficiency with a complete failure to comply with a statutory requirement.

Finally, past practice is not a helpful guide because our precedent holds that a statutory requirement to perfect an appeal cannot be waived in an effort to secure the court’s authority to review a matter. See State ex rel. Farrington v. Rigg, 248 Minn. 49, 50, 78 N.W.2d 721, 721-22 (1956) (stating that “the jurisdiction of the Supreme Court may not be enlarged or conferred by the consent or stipulation of the litigants”); Rathbun v. Moody, 4 Minn. 364, 365, 4 Gil. 273, 273 (1860) (“After a Court has acquired jurisdiction of a cause, parties may doubtless stipulate to waive errors, . . . but consent cannot confer jurisdiction where a statute has provided that it can only be acquired in a certain manner.”). In addition, we have held that past practice in applying a statute is not a “settled construction of the statute” if that practice “contravene[s] plain statutory language.” State by Spannaus v. Nw. Bell Tel. Co., 304 N.W.2d 872, 876 (Minn. 1981) (rejecting an argument that relied on past practice as evidence of a “longstanding administrative interpretation” of a statute, noting that “administrative interpretations must be rejected if they contravene plain statutory language”).

For these reasons, we conclude that the parties’ stipulation to waive the cost bond required by Minn. Stat. § 176.471, subd. 3 (2014), bars the court from exercising certiorari review over the WCCA’s decision. The appeal must therefore be dismissed.