Luz Hernandez, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0639

Luz Hernandez,
Appellant,

vs.

State of Minnesota,
Department of Human Services,
Respondent,
Southwest Health & Human Services,
Respondent.

Filed December 18, 2017
Reversed
Reyes, Judge
Cleary, Chief Judge, Concurring specially

Lyon County District Court
File No. 42-CV-16-600

Andrew L. Hodney, Stermer & Sellner, Chtd., Montevideo, Minnesota (for appellant)

Lori Swanson, Attorney General, Frederic J. Argir, Assistant Attorney General, St. Paul,
Minnesota (for respondent Department of Human Services)

Richard R. Maes, Lyon County Attorney, Nico le A. Springstead, Assistant County
Attorney, Marshall, Minnesota (for respondent Southwest Health & Human Services)

Considered and decided by Cleary, Chie f Judge; Bjorkman, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant Luz Hernandez challenges the dist rict court order affirming respondent
Southwest Health and Human Services’ (SWHHS) determination that appellant maltreated
two minors by neglect, because respondent Minnesota Department of Human Services
(DHS) issued its decision after 24 months, rather than within 90 days of her appeal as set
forth in Minn. Stat. § 256.0451, subd. 22(a) (2016).1 We reverse.
FACTS
On December 18, 2013, respondent SWHHS notified appellant of its determination
that she had maltreated two children in her care by neglect. SWHHS determined that the
maltreatment was serious and recurring and disqualified appellant from any position
allowing direct contact with, or access to, persons receiving services from, or served by a
program or entity identified in Minn. Stat . § 245C.03 (2016). Appellant requested
reconsideration of the determination. On February 3, 2014, SWHHS notified appellant
that it had reconsidered and affirmed the determination.
On May 2, 2014, appellant filed an appeal with DHS and requested an evidentiary
hearing before a human-services judge (HSJ) pursuant to Minn. Stat. § 256.045, subd. 3
(Supp. 2017). The HSJ scheduled the hearing for September 3 and 4, 2014, more than 120
days after the appeal was filed with DHS. At the prehearing conference on June 17, 2014,

1 We cite the most recent version of Minn. Stat. § 256.0451 because it has not been
amended in relevant part. See Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs , 617
N.W.2d 566, 575 (Minn. 2000) (stating that, ge nerally, “appellate courts apply the law as
it exists at the time they rule on a case”).
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SWHHS moved to dismiss the appeal as un timely. On August 25, 2014, the parties
mutually requested a continuance of the h earing because the HSJ had not yet ruled on
SWHHS’s motion to dismiss. After granti ng the continuance and denying the motion to
dismiss, the HSJ rescheduled the hearing for December 17 and 18, 2014.
The HSJ finally conducted the evidentiary h earing on December 17, 2014, and
allowed the parties until February 15, 2015, to close the record and also to submit closing
statements, proposed findings of fact, and proposed conclusions of law. On May 10, 2016,
more than 16 months after the evidentiary hearing and 24 months after appellant filed her
appeal, the HSJ issued his recommended findings of fact, conclusions of law, and an order
affirming SWHHS’s determination of maltreatment and disqualification of appellant. On
May 13, 2016, the commissioner of human services adopted the HSJ’s recommended
findings of fact, conclusions of law, and order. Appellant filed an appeal with the district
court, which affirmed the Commissioner’s order. This appeal follows.
D E C I S I O N
Appellant argues that the commissioner’s decision should be reversed because DHS
failed to issue its decision within the statutorily mandated time period. We agree.
Review of the commissioner’s order is au thorized under Minn. Stat. § 256.045,
subds. 7, 9 (2016), and the scop e of review is governed by Minn. Stat. § 14.69 (2016).
Zahler v. Minn. Dep't of Human Servs., 624 N.W.2d 297, 301 (Minn. App. 2001), review
denied (Minn. June 19, 2001). Under that sta ndard, we may affirm or we may reverse,
modify or remand the commiss ioner’s order if the petitione r’s substantial rights were
prejudiced because the decision was made “in excess of the [agency’s] statutory authority.”
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Minn. Stat. § 14.69(b) (2016). “[T]his court reviews the commissioner’s order
independently, giving no deference to the district court’s review.” Zahler, 624 N.W.2d at
301.
We review questions of statut ory interpretation de novo. Young v. Jesson , 796
N.W.2d 158, 163 (Minn. App. 2011). When interpreting a statute, we first examine
whether the language is clear or ambiguous. Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d
273, 277 (Minn. 2000). When the words of a statute are clear and free from all ambiguity,
we apply the letter of the law and do not construe or interpret the statute’s language. Minn.
Stat. § 645.16 (2016); Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).
DHS is required to issue a timely, written decision following every appeal hearing.
Minn. Stat. § 256.0451, subd. 22 (2016). Its written decision “must be issued within 90
days of the date the person involved requested the appeal.” Id., subd. 22(a).2 Neither party
argues that the statute is ambiguous, and we ag ree. Nonetheless, respondents argue that
DHS may exceed the deadline because th e statute provides no consequence for
noncompliance and is directory. Here, it is undisputed that DHS issued its written decision
two years after appellant filed her appeal. At issue is whether DHS exceeded its statutory
authority by failing to comply with the statutory 90-day deadline.
The word “must” is defined as a mandatory provision when used in a statute. Minn.
Stat. § 645.44, subd. 15a (2016). But under case law, “the words ‘shall’ and ‘must,’ while
suggestive of a mandatory meani ng, are not always to be cons trued in a statute as being

2 Under some circumstances, the 90-day deadline do es not begin until notice of a final
licensing determination, see id., but no party argues that those circumstances apply here.
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mandatory[,]” and may be construed as directory. Wenger v. Wenger, 200 Minn. 436, 440,
274 N.W. 517, 519 (1937). Generally, a statute containing a requirement but providing no
consequence for noncompliance will be regarded as directory, not mandatory. Hans Hagen
Homes, Inc. v. City of Minnetrista , 728 N.W.2d 536, 54 1 (Minn. 2007) (citing Lord v.
Frisby, 260 Minn. 70, 76, 108 N.W.2d 769, 77 3 (1961) (“[G]enerally[,] . . . where the
provisions of the statute . . . are merely incidental or subsidiary to the chief purpose of the
law . . . and do not declare th e consequences of a failure of compliance, the statute will
ordinarily be construe d as directory and not as mandato ry.”)). Violation of a directory
statute does not invalidate an agency decision. Sullivan v. Credit River Twp. , 299 Minn.
170, 177, 217 N.W.2d 502, 507 (1974). The statute at issue here provides no consequence
for noncompliance. However, this does not end our analysis.
The Minnesota Supreme Court has reco gnized that a statute may impose a
mandatory deadline on a government agency even if the stat ute provides no consequence
for noncompliance. Hans Hagen Homes, Inc., 728 N.W.2d at 541 (citing State by Beaulieu
v. RSJ, Inc. , 552 N.W.2d 695, 701-02 (Minn. 1996)). In Beaulieu, the Minnesota
Department of Human Rights (MDHR) ex ceeded a 12-month statutory deadline by
approximately 23 months. 552 N.W.2d at 6 99. The statute required that MDHR “shall”
issue a probable-cause determination within 12 months of a comp laint and provided no
consequence for noncompliance. 552 N.W.2d at 701-702. The supreme court declined to
construe the statute as directory, stating that there is no occasion to resort to statutory
construction when the language is clear. Id. The supreme court held that probable-cause
determinations made 31 months or more after a charge is filed are per se prejudicial and
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require dismissal of the complaint. Id. at 703. In reaching its decision, the supreme court
found both the substantial lengt h of the agency’s delay and its lack of justification or
explanation for the delay troubling. Id. at 701, 703.
Here, DHS does not argue that its delay in issuing a written decision was justified,
and the record evidence contains no explanati on for the delay. DHS’ s delay gives rise to
the same concerns as those expressed in Beaulieu, and the delay is far more substantial. In
Beaulieu, MDHR exceeded its 12-month deadline by 23 months, a delay nearly three times
longer than the prescribed statutory timeframe. In this case, DHS exceeded its three-month
deadline by 24 months, a delay eight times longer than the prescribed timeframe. A delay
of this magnitude effectively renders the statutory deadline meaningless.
In seeking a directory constr uction of the statute, respo ndents in this case “would
have us conclude that the legislature intended for [DHS] to take as long as it wanted to
[issue its decision].” Id. at 701. The legislature’s pur pose in enacting the hearing
procedures contained in Minn. Stat. § 256.0451 (2016) is, in part, to provide a fair-hearing
appeal to individuals challenging a decision of the county or state human-services agency.
That purpose is frustrated wh en appeal decisions are de layed. As the court in Beaulieu
noted, “evidence and witnesses may disappear, memories may fade, assets may be wasted,
and damages may continue to ac crue.” 552 N.W.2d at 702. A directory construction of
the statute diminishes DHS’s incentive to issue “[a] timely, written decision . . . in every
appeal.” Minn. Stat. § 256.0451, subd. 22.
Moreover, we need not decide whether the statute is mandatory or directory. Even
if we were to construe the statute as direct ory, an agency’s fail ure to comply with a
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directory statute may still warrant relief if the delay prejudices a ppellant’s substantial
rights. Riehm v. Comm’r of Pub. Safety, 745 N.W.2d 869, 876 (Minn. App. 2008) (citing
State ex rel. Indep. Sch. Dist. No. 276 v. Dep’t of Ed., 256 N.W.2d 619, 626 (Minn. 1977));
Minn. Stat. § 14.69. Here, appellant waited two years to receive DHS’s disposition of her
appeal of the maltreatment determination and disqualification. During that time, appellant
remained disqualified from any position allowing direct contact with, or access to, persons
receiving services from, or served by a pr ogram or entity identif ied in Minn. Stat.
§ 245C.03. There is no indica tion that appellant could have mitigated the prejudice
suffered by obtaining a stay of SWHHS’s de termination and disqualification during the
delayed agency appeal. See generally Riehm, 745 N.W.2d at 876- 877 (noting prejudice
may be avoided during delayed hearing where statute provides petitioner right to request a
stay of revocation). Furthermore, as recognized in Beaulieu, agency actions that exceed
the statutory deadline without justification may be per se prejudicial. 552 N.W.2d at 703.
We note that the best practice would be for DHS to adhere to the statutory 90-day deadline
in order to provide petitioners with a fair-hearing appeal.
We conclude that DHS prejudiced appellant ’s substantial rights to a fair hearing
appeal by exceeding its statutory authority in issuing its decision two years after she filed
her appeal, in violation of the 90-day deadline set forth in Minn. Stat. § 256.0451, subd.

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22(a). Therefore, we need not reach appellant’s additional argument concerning a violation
of her procedural-due-process rights.
Reversed.
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CLEARY, Chief Judge (concurring specially)
While I agree with the major ity that the delay was per se prejudicial and that as a
consequence appellant is entitled to relief, I write separately to emphasize the fundamental
unfairness that results when an individual is held to a statutory deadline while a state
agency is allowed to exceed a deadline found in the same statute and extend its jurisdiction
without justification.
The issue is whether the legislature created a mandatory deadline or codified a mere
directory suggestion in Minn. Stat. § 256.0451, subd. 22 (2016). The statute reads, in part,
“[a] timely, written decision must be issued in every appeal” and “[a] written decision must
be issued within 90 da ys” of the individual’s request for review. Id., § 256.0451,
subd. 22(a) (emphasis added). Our goal is to determine de novo what the legislature
intended. State by Beaulieu v. RSJ, Inc. , 552 N.W.2d 695, 701 (Minn. 1996). The
legislature’s decision to use the verb “must” in subdivisi on 22(a) and elsewhere in the
statute rules out the possibility that the legislature intended the deadline to be discretionary
or aspirational. “Must” means “must” and the intent of the legislature was to have a written
decision issued within 90 days.
As the majority notes, the commissioner delayed its decision for more than 16
months after the evidentiary hearing and 24 m onths after appellant f iled her appeal. No
reason or justification was offered for the delay. Instead, the commissioner contends that
the phrase “a written decision must be issued within 90 days” in subdivision 22(a) amounts
to nothing more than a legisl ative suggestion that the commissi oner is free to adhere to,
willfully ignore, or otherwise fail to comp ly with as it sees fit. Relying on Wenger v.
CS-2
Wenger, 200 Minn. 436, 274 N.W. 517 (1937) a nd its progeny, the commissioner asserts
that the absence of a codified penalty transforms the word “must” into a “may” and renders
the deadline directory, rather than manda tory. Under this view, the commissioner is
directed—but not required—to issue a decision at all, let alone within 90 days, as there is
no statutory penalty for the failure or refusal to issue a decision. This cannot be the result
intended by the legislature.
At the same time, if appellant had failed to comply with the deadlines prescribed by
the statute, her appeal would be dismissed outright for lack of jurisdiction despite the fact
that no such penalty appears in the statute. See In re D.F.C. v. Minn. Comm’r of Health ,
693 N.W.2d 451, 453 (Minn. App. 2005). The statutory construction urged by the
commissioner generates a fundam entally unfair result: an in dividual is held to the
deadlines in Minn. Stat. § 256.0451, but the commissioner is not. Instead, the
commissioner is afforded an unspecified amount of time to issue a decision and may choose
not to issue one at all without forfeiting its jurisdiction.
The purpose of the 90-day deadline is to provide an individual with a decision on
her administrative appeal in a timely manne r. Once this decision has been issued, the
individual is one step closer to an opportun ity to challenge the decision to an authority
outside the administrative agency. Delayi ng the issuance of a decision past 90 days—or
refusing to issue a decision at all—prejudices individuals in a way that I believe the
legislature did not intend. I respectfully submit that this manner of construction frustrates
the purpose of the statute and can, as demons trated here, result in fundamental unfairness
and a denial of due process. The legislatur e should provide a consequence for the failure
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of the agency to abide by the statutory dire ctive found in Minn. Stat. § 256.0451, subd.
22(a) that a written decision “must be issued within 90 days . . . .”