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[U} Ostergaard v. Commissioner of the Minnesota Department of Human Services

December 6, 2002


Department of Human Services File No. 112361

The opinion of the court was delivered by: Willis, Judge


Dissenting, Minge, Judge

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


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. §á245A.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 Serv., 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. ยงรก245A.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 ...

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