Kelly Dennis v. The Salvation Army and Chesterfield Services, Inc., Relators, and HealthEast Physician Services, HealthEast St. John's Hospital, High Pointe Surgery Center, Minnesota Department of Human Services/BRS, St. Croix Orthopaedics, and Nurse Anesthesia Services, P.A., Intervenors. ( 2016 )

STATE OF MINNESOTA
IN SUPREME COURT
A15-0715
Workers’ Compensation Court of Appeals Lillehaug, J.
Took no part, Hudson, J.
Kelly Dennis,
Respondent,
vs. Filed: February 3, 2016
Office of Appellate Courts
The Salvation Army and Chesterfield Services, Inc.,
Relators,
and
HealthEast Physician Services,
HealthEast St. John’s Hospital,
High Pointe Surgery Center,
Minnesota Department of Human Services/BRS,
St. Croix Orthopaedics, and
Nurse Anesthesia Services, P.A.,
Intervenors.
________________________
James A. Batchelor, Batchelor Law Firm, Minneapolis, Minnesota, for respondent.
Mark A. Kleinschmidt, Thomas F. Coleman, Cousineau McGuire Chartered,
Minneapolis, Minnesota, for relators.
Charles A. Bird, Grant M. Borgen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota
and Scott A. Wilson, Minneapolis, Minnesota, for amicus curiae Minnesota Association
for Justice.
________________________
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SYLLABUS
Because relators did not timely serve a cost bond upon the Workers’
Compensation Court of Appeals as required by Minn. Stat. § 176.471, subd. 3 (2014), the
writ of certiorari is discharged and the appeal is dismissed.
Appeal dismissed.
OPINION
LILLEHAUG, Justice.
Minnesota Statutes § 176.471, subd. 3 (2014) provides: “To effect a review upon
certiorari, the party shall serve . . . a bond upon the administrator of the Workers’
Compensation Court of Appeals within the 30-day period [for seeking review].” This
case requires us to determine whether timely service of that bond is mandatory in order
to “have [the WCCA] order reviewed by the Supreme Court on certiorari,” id., subd. 1.
Because timely service of the bond is required, but was not accomplished here, we must
discharge the writ of certiorari and dismiss this appeal.
I.
On February 8, 2013, Kelly Dennis slipped, fell, and injured his left knee.
Alleging that the injury arose out of, and in the course of, his employment with The
Salvation Army, Dennis filed a claim petition for workers’ compensation benefits. The
Salvation Army and its insurer, Chesterfield Services, Inc. (collectively relators), denied
liability.
By findings and order filed September 4, 2014, the compensation judge awarded
Dennis benefits. Relators appealed to the Workers’ Compensation Court of Appeals
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(WCCA). By decision and order filed April 10, 2015, the WCCA affirmed the findings
and order of the compensation judge. Relators had 30 days from the date they were
served with notice of the order to have the order reviewed by this court on certiorari.
Minn. Stat. § 176.471, subd. 1.
On April 28, 2015, within the 30 days, relators filed a petition for a writ of
certiorari with the clerk of the appellate courts, and in return, the clerk provided relators
with a conformed writ. Relators served the conformed writ, the petition, and a statement
of the case on Dennis, intervenors, and the WCCA on April 30, 2015. That same day,
the clerk issued a notice of case filing that provided the parties with the appellate file
number and noted that relators had not provided the required affidavit of service for the
issued writ. Relators provided the required affidavit the next day.
But there was something else missing from relators’ April 28 filing: a cost bond.
On May 6, 2015, the WCCA notified the clerk that relators had not served a cost bond on
the WCCA as required by Minn. Stat. § 176.471, subds. 3 & 5.
By order filed September 15, 2015, we directed the parties to file informal
memoranda addressing whether a cost bond was served on the WCCA and, if not, what
effect, if any, the deficiency had on the appeal. Upon receiving our order, relators served
a cost bond on the WCCA. Relators also filed a memorandum, arguing that the
“imperfect filing of a cost bond” did not affect the court’s authority over the appeal, that
the court had the authority to extend the time for service of the cost bond, that there had
been no prejudice to Dennis, and that any deficiency had been waived by Dennis’s
silence.
3
For his part, Dennis argued that the plain and unambiguous language of Minn.
Stat. § 176.471 required timely service of a cost bond to “effect” this court’s review.
Dennis further argued that both the alleged lack of prejudice and the alleged waiver are
irrelevant to the legal question presented: whether the court has the authority to review
the WCCA decision.
II.
Decisions of the WCCA are reviewable by this court on certiorari. Review must
be sought within 30 days from the date a party has been served with notice of the WCCA
order. Minn. Stat. § 176.471, subd. 1. The Legislature has established a series of steps
for judicial review by certiorari. First, the relator must file a petition for a writ of
certiorari with the clerk of the appellate courts, who issues the writ.1 The relator then
serves the issued writ and a cost bond on the WCCA. The cost bond, which “shall be
executed in such amount and with such sureties as the Workers’ Compensation Court of
Appeals directs and approves,” must be “conditioned to pay the cost of the review.”
Minn. Stat. § 176.471, subd. 5. Service of the writ of certiorari and the cost bond
operates “[t]o effect a review upon certiorari.” Minn. Stat. § 176.471, subd. 3 (“To effect
1
Many of the steps for review of WCCA decisions are also found in the Minnesota
Rules of Civil Appellate Procedure. See Minn. R. Civ. App. P. 116.02 (“The petition and
a proposed writ of certiorari shall be filed with the clerk of the appellate courts.”).
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a review upon certiorari, the party 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.”).2
Then, “[w]hen the writ of certiorari has been served upon the [WCCA], the bond
has been filed, and the filing fee has been paid, the [WCCA] shall immediately
transmit to the clerk of the appellate courts that filing fee and the return to the writ
of certiorari and bond.” Minn. Stat. § 176.471, subd. 6. “Filing such return and
payment of the filing fee . . . vests the Supreme Court with jurisdiction of the case.”
Minn. Stat. § 176.471, subd. 7. “Within 30 days after the writ of certiorari, bond, and
filing fee have been filed” with the WCCA, the WCCA transmits to the clerk of the
appellate courts “a true and complete return of the proceedings of the [WCCA] under
review . . . .” Minn. Stat. § 176.471, subd. 8.
III.
Relators concede that they did not comply with the requirement of Minn. Stat.
§ 176.471, subds. 3 & 5, that “to effect review,” the cost bond must be served within the
30-day period to appeal. The question is whether that deficiency is fatal to their appeal.
We conclude that it is. The plain and unambiguous purpose of the cost bond is
“to effect review upon certiorari.” “Effect,” as used here, means “to cause to come into
being.” Merriam-Webster’s Collegiate Dictionary 724 (10th ed. 2001). See also
2
Our rules similarly require service of a copy “of the petition and writ upon the
court or body to whom it is directed and upon any party within 30 days” after the relator
was served with written notice of the decision to be reviewed. Minn. R. Civ. App. P.
116.03, subd. 4. The relator must also “file the bond or other security required by statute
or by the Supreme Court.” Minn. R. Civ. App. P. 116.03, subd. 2.
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Black’s Law Dictionary 533 (7th ed. 1999) (“effect: To bring about; to make happen”).
The exclusive method the Legislature has provided for our review of WCCA decisions
is by certiorari. Thus, we read “to effect review upon certiorari,” in combination with
the 30-day time limit, to mean that the 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. Put another way, a relator cannot invoke the right of review by
certiorari without following each of the steps established by the Legislature. State ex
rel. Ryan v. Civil Serv. Comm’n, 278 Minn. 296, 301, 154 N.W.2d 192, 196 (1967)
(recognizing that when certiorari review is authorized by statute, “the statutory
provisions must be strictly construed”).
Our reading is reinforced by the words that come after the phrase, “to effect
review upon certiorari.” This portion of the statute commands the party seeking review
to serve the writ of certiorari and the cost bond. Minn. Stat. § 176.471, subd. 3 (“the
party shall serve a writ of certiorari and a bond” on the WCCA (emphasis added)). The
word “shall” creates a mandatory duty. See Minn. Stat. § 645.44, subd. 16 (2014)
(“ ‘Shall’ is mandatory.”); Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 708 (Minn.
2015) (“The first sentence of the statute, by using the word ‘shall’ to describe the
attendance requirement [before a compensation judge], creates a mandatory duty for
intervenors.”). Subdivision 5 also supports our reading of subdivision 3 because it
contains similar mandatory language in reference to the bond: the bond is “required.”
Minn. Stat. § 176.471, subd. 5. The only reasonable interpretation of the plain and
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unambiguous directions in this statute is that certiorari review is not available when one
step in the process is omitted.3
Both this reading of the relevant statutory provisions and our holding are
consistent with the long-established principle that we adhere strictly to the statutory
requirements for appeals from an executive branch agency. “Proceedings [on a writ of
certiorari] are special proceedings within the meaning of our statutes. Our writ of
certiorari is statutory and the statutory provisions must be strictly construed.” State ex
rel. Ryan, 278 Minn. at 301, 154 N.W.2d at 196. We have applied this principle to
appeals by writ of certiorari to the WCCA. See Kearns v. Julette Originals Dress Co.,
267 Minn. 278, 282, 126 N.W.2d 266, 269 (1964) (stating, regarding a failure to timely
file and serve a notice of appeal to the Industrial Commission, 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”); Haimila v. Opsahl Co., 208 Minn. 605, 606,
293 N.W. 599, 600 (1940) (discharging writ of certiorari for failure to timely serve the
writ on respondents); Nelson v. Krause, 201 Minn. 123, 125, 275 N.W. 624, 625 (1937)
(noting the bond required for an appeal in a workers’ compensation proceeding is “fixed
and approved by the [Industrial] commission” and the court has “jurisdiction of the
3
Relators rely on a separate provision of section 176.471, which provides that the
filing of the “return” from the WCCA administrator, along with payment of the filing fee,
“vests the Supreme Court with jurisdiction of the case.” Minn. Stat. § 176.471, subd. 7.
However, subdivision 6 provides that a prerequisite to the return is the filing of the cost
bond, and subdivision 3 mandates service of the cost bond on the WCCA. Thus,
regardless of the WCCA’s return, certiorari review is not “effected,” meaning it does not
happen, unless the cost bond required by subdivisions 3, 5, and 6 is obtained and timely
served upon the WCCA.
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compensation proceeding upon the filing with the commission of the bond fixed and
approved by it and the payment to its secretary of [the amount] to be transmitted to the
clerk of this court for his fees”). We have applied the same principles in other contexts
in which our review is invoked through certiorari. Bunday v. Dunbar, 5 Minn. 444, 447
(Gil. 362, 363-364) (1861) (stating that where a statute requires service of a writ of
certiorari within a specified time, “[t]his particularity . . . puts it beyond doubt that the
statute is not merely directory in its requirement that the writ shall be served within ten
days, but makes it an essential step in the removal of the cause.”).
Even more specifically, we have applied this principle in issuing a series of
orders dismissing certiorari appeals for failure to comply with the requirements of Minn.
Stat. § 176.471. See, e.g., Larson v. Herberger’s (Bon-Ton Stores, Inc.), A13-0647,
Order (Minn. filed June 25, 2013) (failure to serve respondent employer with issued
writ, and failure to serve the WCCA with writ and cost bond); Ek v. Virginia Reg’l Med.
Ctr., A10-1420, Order (Minn. filed Sept. 21, 2010) (“[S]ervice of the writ of certiorari
issued by the Clerk of Appellate Courts and cost bond are statutory requirements for
obtaining review of decisions of the WCCA”); Van Buren v. City of Willmar, A10-0939,
Order (Minn. filed July 17, 2010) (“No affidavit demonstrating timely service of the
issued writ on the WCCA has been filed.”); Malmquist v. Peterson, A08-1026, Order
(Minn. filed June 30, 2008) (same); Hagy v. Morton Bldgs., Inc., A07-1348, Order
(Minn. filed July 16, 2007) (“[T]he writ of certiorari is discharged because it was not
timely served on the” WCCA); Haag v. D.S. Brown Co., A04-2294, Order (Minn. filed
Dec. 27, 2004) (same). Indeed, as we must do in this case, we have discharged the writ
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and dismissed appeals based solely on the failure to serve the cost bond. See Rivera v.
Cargill Kitchen Solutions, Inc., A15-0625, Order (Minn. filed May 26, 2015)
(dismissing for failure to serve a cost bond on the WCCA); Addington v. Allina Health
Sys., A09-1076, Order (Minn. filed July 15, 2008) (same); Fitzgerald v. DOS Trucking,
Inc., A08-1050, Order (Minn. filed July 11, 2008) (same).
Therefore, because a bond was not served on the WCCA within the 30-day time
period, our review has not been effected and we have no statutory authority to decide
this certiorari appeal.
III.
Relators nonetheless contend that their failure to serve a cost bond in a timely
fashion is not material because they paid the filing fee and the WCCA administrator
provided the return to the writ of certiorari when it transferred the record to this court.
Thus, they argue, under subdivision 7, jurisdiction “vested” in the supreme court
notwithstanding the failure to procure and serve the requisite cost bond. They request
that we extend the time for filing the cost bond under subdivision 2, which allows us to
“extend the time for filing any other paper which this chapter requires to be filed . . . .”
Minn. Stat. § 176.471, subd. 2.
We decline relators’ request to cobble together portions of subdivisions 2 and 7,
and thereby excuse relators’ delay, for two reasons. First, relators’ reading flies in the
face of the plain, unambiguous, and mandatory, time-limited commands of subdivisions
3, 5, and 6. Second, relators misread subdivision 2, which provides only a limited
extension opportunity—specifically, to file any other papers. Nothing allows us to
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extend the time to accomplish the act required by subdivision 3, which is to serve the
bond on the WCCA. Further, the extension permitted by subdivision 2 distinguishes
between what must be filed within the 30-day period, and “other papers.” After 30 days,
our authority to extend the time is clearly limited to “other papers”—that is, papers other
than those that must be filed within 30 days under subdivision 2. And as noted earlier,
subdivision 3 makes clear that this authority to extend does not include the cost bond.
Next, relators argue that they were denied an opportunity to cure their failure to
file the cost bond. They cite no authority for the proposition that they had any legal or
equitable entitlement to notice from the WCCA or the clerk of the appellate courts so
that they could timely cure their own filing deficiency, and we have found none.
Relators next argue that there has been no prejudice to Dennis because the
protection provided by a cost bond—to guarantee that taxable costs on appeal are
paid—does not become “ripe” until the appeal is resolved. But the issue here is not
ripeness or prejudice; it is whether relators have complied with a mandatory statutory
duty and thereby effected the certiorari review they seek. Whether a cost bond should
be necessary to effect certiorari review of a decision by an executive branch agency or
court, and, if so, under what circumstances and by what deadlines, are matters of policy
for the Legislature, not us, to decide. See Schuette v. City of Hutchinson, 843 N.W.2d
233, 238-39 (Minn. 2014) (reasoning that policy determinations in the Workers’
Compensation Act are left to the Legislature); Dukowitz v. Hannon Sec. Servs., 841
N.W.2d 147, 151 (Minn. 2014) (noting that it is for the Legislature to determine whether
considerations of public policy justify a change in the law).
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Finally, relators argue that Dennis waived the cost-bond deficiency by not
objecting or moving to dismiss the appeal. Relators rely on Riley v. Mitchell, 38
Minn. 9, 35 N.W. 472 (1887), to argue that a statutory bond requirement is a
technicality to be excused or waived without affecting this court’s jurisdiction. Id. at
13, 35 N.W. at 473 (stating that a “defect in the appeal-bond does not go to the
jurisdiction, but may be waived” and rejecting the proposition that a bond irregularity
“goes to the jurisdiction of the court over the subject matter”).
But Riley is not a case that arose under the workers’ compensation statute. And,
as we recognized in Riley, “a different rule might obtain” where a statute “makes the right
of the appellate tribunal . . . dependent upon the doing of certain acts as an essential
prerequisite.” Id. Based on the plain language of Minn. Stat. § 176.471, reading together
subdivisions 1, 2, 3, 5, 6, and 7, and given that the cost bond requirement is a statutory
prerequisite for this court to exercise certiorari review over a decision by an executive
agency, we cannot excuse relators’ deficiency.
Nor can we hold that Dennis waived the issue. Waiver is the intentional
relinquishment of a known right. In re Civil Commitment of Giem, 742 N.W.2d 422, 432
(Minn. 2007); Carlson v. Doran, 252 Minn. 449, 456, 90 N.W.2d 323, 328 (1958).
Waiver “is the expression of an intention not to insist on what the law affords.” Carlson,
252 Minn. at 456, 90 N.W.2d at 328. Here, the issue of the lack of a cost bond was
identified by this court and briefing was ordered. There is no indication in the record that
Dennis knew of relators’ filing deficiency or intentionally relinquished the right to insist
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that the statute be followed. Indeed, the record suggests that both relators and Dennis
apprehended relators’ deficiency only when we ordered briefing.
For all of these reasons, the writ of certiorari is discharged and the appeal is
dismissed.
HUDSON, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
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