Shonwta Demar Jackson, Relator,

This opinion will be unpublished and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
A17-1135

Shonwta Demar Jackson,
Relator,

vs.

Commissioner of Human Services,
Respondent.

Filed June 4, 2018
Affirmed
Florey, Judge

Minnesota Department of Human Services
License No. 1077904

Mary F. Moriarty, Chief Henne pin County Public Defender, Peter W. Gorman, Assistant
Public Defender, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, Gail A. Feichtinger, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Florey, Pres iding Judge; Larkin, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Relator appeals respondent’s denial of his request for reconsideration or to set aside
his disqualification from provid ing direct-care services. Re lator argues that respondent
acted arbitrarily, capri ciously, and without sufficient evid ence in refusing to rescind the
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disqualification. He also argues the Mi nnesota Department of Human Services
Background Studies Act, Minn. Stat. §§ 24 5C.01-.34 (2016) (Background Studies Act),
and respondent’s actions under the act, viol ate his due-process rights, the separation-of-
powers doctrine, and the rules of evidence. We affirm.
FACTS
In 2010, Model Health Care Inc. subm itted a background-s tudy request to
respondent Minnesota Commissioner of Huma n Services for relator Shonwta Demar
Jackson. As part of the background study, respondent requested records related to a
termination of relator’s parental rights. Th e records revealed that , in 2002, relator’s 12-
year-old son accused relator of physical and sexual abuse that occurred when the child was
eight or nine years old. A child-protection investigation was opened, and the investigation
resulted in a finding of maltrea tment on the basis of physical and sexual abuse. A 2003
petition to terminate relator’s parental rights indicated that the report of sexual abuse had
been substantiated. In 2004, relator’s pare ntal rights to five of his six children were
voluntarily terminated.
Based on the information contained in the records, respondent concluded that relator
was disqualified from positions allowing direct contact with persons receiving services
from programs licensed by respondent. Specifically, respondent concluded that relator was
disqualified under Minn. Stat. § 245C.14, subd. 1(2), for committing an act which met the
definition of first-degree criminal sexual conduct. A letter was sent to respondent in July
2010 informing him of the disqualification and his ability to request reconsideration within
30 days of receiving the letter.
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In January and May 2012, two other co mpanies requested background studies on
relator. Respondent notified relator after bot h requests that he wa s disqualified because
“there is a preponderance of evidence that on or around 1998, [relator] committed an act
which meets the definition of a disqualifying characteristic.”
In July 2016, Park Avenue Center on Nicollet requested a background study on
relator. On February 28, 2017, respondent sent a letter to relator informing him that he is
permanently disqualified because he committed first-degree criminal sexual conduct on or
around 1998 and because his parental rights were involuntarily terminated in 2004.
In March 2017, an attorney for rela tor requested reconsideration of the
disqualification. He argued that relator voluntarily terminated his parental rights and was
never convicted of criminal sexual conduct. On June 15, 2017, respondent affirmed
relator’s disqualification. Respondent stated that, because relator was previously notified
of the disqualification in 2010 and 2012 and did not request reconsideration at those times,
the “correctness of [the] disqualification be came conclusive under Minnesota Statutes,
section 245C.29, subdivision 2.”
In July, respondent issued a letter s uperseding the June 15 letter. Respondent
affirmed the disqualification for acts constituting first-degree criminal sexual conduct but
found that the information us ed to disqualify relator on the ground of an involuntary
termination was incorrect. Re spondent rescinded that ba sis for disqualification.
Respondent again indicated that the “correctness of [relator’s] disqualification became
conclusive” after he failed to challenge the disqualification in 2010 and 2012.
This certiorari appeal followed.
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D E C I S I O N
The parties agree that the case is not subject to the Minnesota Administrative
Procedure Act (MAPA), Minn. Stat. §§ 14.001 -.69 (2016). MAPA only applies to an
agency’s final decision in a “contested case.” Minn. Stat. § 14.63. A “contested case” is
“a proceeding before an agency in which the legal rights, duties, or privileges of specific
parties are required by law or constitutional right to be determined after an agency hearing.”
Minn. Stat. § 14.02, subd. 3. A person is not entitled to an agency hearing when a person
is conclusively disqualified. Minn. Stat. §§ 256.045, subd. 3b(c) (Supp. 2017), 245C.27,
subd. 1. Under Minn. Stat. § 245C.29, subd. 2(a)(2), relator is conclusively disqualified
and is therefore not entitled to an agency hearing.
When considering an agency’s quasi-judicial decision that is not subject to MAPA,
this court examines “the record to review questions affecting the jurisdiction of the agency,
the regularity of its proceedings, and, as to the merits of the controversy, whether the order
or determination in a particular case was ar bitrary, oppressive, unreasonable, fraudulent,
under an erroneous theory of law, or without any evidence to support it.” Anderson v.
Comm’r of Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quotation omitted), review
denied (Minn. Apr. 17, 2012). When reviewing agency decisions, we “adhere to the
fundamental concept that deci sions of administrative agencies enjoy a presumption of
correctness.” In re Excess Surplus Status of Bl ue Cross & Blue Shield of Minn. , 624
N.W.2d 264, 278 (Minn. 2001) (quotation omitted).
Under the Background Studies Act, a person seeking employment in certain
licensed facilities who will be providing di rect-contact services must submit to a
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background study. Minn. Stat. § 245C.03, subd. 1(a)(3). A person is permanently
disqualified from providing direct-contact services if the person has been convicted of one
or more listed crimes or it is established by a preponderance of the evidence that the person
committed an act that meets the definition of one of those crimes. Minn. Stat. §§ 245C.14,
subd. 1, .15, subd. 1. Incl uded in the list of permanently disqualifying crimes are all
degrees of criminal sexual conduct. Minn. St at. § 245C.15, subd. 1(a) (including Minn.
Stat. §§ 609.342-.3451 (2016)). A disqualified i ndividual may request reconsideration
within 30 days of a disqualification decisi on. Minn. Stat. § 245C.21, subd. 2. But
respondent may not set aside a disqualific ation if the individual was permanently
disqualified for conduct listed in section 245C.1 5, subdivision 1. Minn. Stat. § 245C.24,
subd. 2.
I. The 2010 disqualification is conclusive and permanent and controls the 2017
disqualification.

Relator argues that respondent acted arbitrarily, capriciously, and without sufficient
evidence in refusing to reconsider or set asid e the disqualification in 2017. Respondent
argues that relator’s challenge fails because the 2010 disqualification is conclusive and
applies to all future background studies. Re lator does not deny that he failed to request
reconsideration in 2010 and 2012, but argues that this appeal is solely limited to the 2017
disqualification.
Minn. Stat. § 245C.29, subd. 2(a)(2) states , “A disqualification is conclusive for
purposes of current and future background studies if . . . th e individual did not request
reconsideration of the disqualification unde r section 245C.21 on the basis that the
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information relied upon to disqualify the individual was incorrect . . . .” In Smith v. Minn.
Dept. of Human Servs., this court considered whether a relator was barred from challenging
a permanent disqualification that was conc lusive under Minn. Stat. § 245C.29. 764
N.W.2d 388, 390-92 (Minn. App. 2009). Th e relator was disqualified from services in
2006 and 2007 and fail ed to timely challenge the determinations. Id. at 391. This court
concluded that the relator was “conclusively permanently disqualified” because of his
failure to challenge either dete rmination in a timely fashion. Id. at 392. Because the
challenge that was ultimately made was untimely, and thus barred, the department’s action
“was not arbitrary, unreasonable, oppressive, fraudulent, made under an error of law, or
unsupported by the evidence.” Id.
Our decision in Smith supports our conclusion that relator is barred from challenging
the merits of respondent’s disqualification deci sion. Relator received three notices of a
disqualification in 2010 and 2012. He failed to timely request reconsideration of the 2010
disqualification under Minn. St at. § 245C.21. Therefore his disqualification became
conclusive for all future background stud ies, and he is procedurally barred from
challenging the 2017 disqualification decision.
II. Respondent’s decision is supported by substantial evidence and is not arbitrary
or capricious.

Even if the prior disqualifications did not render relator’s 2017 disqualification
conclusive, we would conclude that respondent’s decisi on is supported by substantial
evidence and is not arbitrary or capricious.
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This court may reverse an agency decisi on if it is not supported by substantial
evidence or is arbitrary and capricious. Rodne v. Comm’r of Human Servs. , 547 N.W.2d
440, 444-45 (Minn. App. 1996). An agency’s decision is not arbitrary and capricious if
there is a “rational connection between the facts found” and the agency’s decision. Blue
Cross, 624 N.W.2d at 277 (quotation omitted). We will affirm an agency’s findings if they
are supported by substantial evidence in view of the entire record submitted. White v.
Minn. Dep’t of Nat. Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn.
Oct. 31, 1997).
Relator cites to this court’s recent decision in A.A.A. v. Comm’r of Human Servs.,
No. A17-0370, 2017 WL 48727 71, at *1 (Minn. App. Oct. 30, 2017), to support his
position that the evidence was not sufficient to overcome relator’s de nial of any sexual
conduct. Generally, unpublished opinions of this court are not precedential but may hold
some persuasive value. Minn. St at. § 480A.08, subd. 3(c) (2016); Dynamic Air, Inc. v.
Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993). In A.A.A., this court reversed an agency’s
conclusion that a pre ponderance of the evidence establis hed that the relator committed a
disqualifying act, where the agency based its decision on a one-page probable-cause
statement contained in a 2008 criminal complaint. 2017 WL 4872711, at *2. The
complaint was dismissed 24 days later, and arrest records were later expunged. Id. at *1-
2. This court held that the preponderance of the evidence was not met because of a “lack
of evidence, and [a] dearth of any suppor ting records, reports, or documentation.” Id. at
*2.
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Relator’s disqualification is distinguishable from A.A.A. because respondent had
additional records and documentation to support its decision. Notes from a child-protection
case indicate that relator’s son relayed nearly identical stories of forcible sexual penetration
in his initial report and his CornerHouse intervie w. The notes indicate that a finding of
sexual abuse was substantiated by a preponderance of the evidence and that maltreatment
was found.1 A petition to terminate relator’s pare ntal rights indicates that maltreatment
was substantiated based on the June 2002 report, and “[a] CornerHouse interview
determined [relator’s son] was sexually and physically abused by his parents.” Because of
the reports, the children were adjudicated in n eed of protection or services. In the same
juvenile-protection case, relator voluntarily terminated his parental rights to five of his six
children. These documents provide substantia lly more information than that which was
before this court in A.A.A. Respondent has prov ided sufficient evid ence to support its
determination. The decision to disqualify respondent was not arbitrary or capricious.
III. Relator’s constitutional and evidentiary claims are without merit.
Appellant argues that respon dent violated (1) his due-process rights; (2) the
separation-of-powers doctrine; and (3) the rules of evidence.

1 The regulations promulgated by the Minnesota Department of Human Services require
local agencies investigating reports of ma ltreatment within a fa mily unit to base a
maltreatment determination on a preponderan ce of the evidence. Minn. R. 9560.0220,
subp. 6(A)(1) (2017); see Minn. Stat. § 626.556, subd. 10e(e)-(g) (2016) (requiring
determinations of maltreatment by a local ag ency to be based on a preponderance of the
evidence, and defining maltreatment, in part, as any ac t which constitutes a violation of
Minn. Stat. §§ 609.342-.3451).
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A. Due process
Relator argues “the manner in which [respondent] implemented the disqualification
statute” deprives him of his good name and ab ility to work in his c hosen field. “The
constitutionality of a statute is a questio n of law that we review de novo.” SooHoo v.
Johnson, 731 N.W.2d 815, 821 (M inn. 2007). “[W]e will u phold a statute unless the
challenging party demonstrates that it is unconstitutional beyond a reasonable doubt.” Id.
The United States and Minnesota Constitutions guarantee the right to due process.
U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. Du e-process protections restrain a
government from actions that deprive a pe rson of liberty or property and “include
reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel,
an opportunity to present evidence and argument, the right to an impartial decisionmaker,
and the right to a reasonable decision based solely on the record.” Humenansky v. Minn.
Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb.
14, 1995). But full due-process protections do not apply to the quasi-judicial proceedings
of an agency. In re North Metro Harness, Inc., 711 N.W.2d 129, 136 (Minn. App. 2006).
“The due-process rights required are simply reasonable notice of a hearing and a reasonable
opportunity to be heard.” Id. (quotation omitted).
Under the procedural due-process test articulated in Mathews v. Eldridge, this court
considers (1) the private interest that is affe cted by official action; (2) the risk of an
erroneous deprivation of the interest thro ugh the procedures used, and the value of
additional or substitute procedural safeguards; and (3) the government’s interest, including
the burdens the substitute procedure would entail. 424 U.S. 3 19, 335, 96 S. Ct. 893, 903
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(1976). After balancing the individual’s interests and the agency’s interests, we determine
whether due process requires additi onal or different procedures. Schulte v. Transp.
Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).
An individual “has a protected property in terest in holding direct-care positions in
state-licensed facilities.” Anderson, 811 N.W.2d at 167. “Employment in an individual’s
chosen field is significant and weighs heavily in the individual’s favor.” Sweet v. Comm’r
of Human Servs., 702 N.W.2d 314, 320 (Minn. App. 2005), review denied (Minn. Nov. 15,
2005). Likewise, a person has a protected liberty interest in protecting his reputation and
associations in the community. Fosselman v. Comm’r of Human Servs., 612 N.W.2d 456,
461 (Minn. App. 2000). However, this court has previously stated that “the governmental
interest in protecting the public, especially vulnerable individuals . . . is of paramount
importance.” Sweet, 702 N.W.2d at 321. “The government also has an interest in saving
time and money by reconsidering disqualifications quickly and efficiently . . . .” Id.
Relator was provided with an opportunity to request re consideration of the initial
disqualification in 2010. Had he done so, he would have had the opportunity for a hearing
and to present argument and evidence fo r why he should not be disqualified. See Minn.
Stat. §§ 256.045, subd. 3(a)(10) (Supp. 2017), 245C.27, subd. 1(a). He was therefore
provided an opportunity to challenge the agency’s action that has led to the deprivation of
his ability to work in his chosen field. He did not do so. “[T]here is no due process
violation if an aggrieved party fails to take advantage of an appeal process.” Smith, 764
N.W.2d at 392.
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Relator also argues that Minn. Stat. § 245C.29 creates a permanent, irrebuttable
presumption of disqualification that will inhibit his ability to work in his chosen field for
life. He cites Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230 (1973), for the proposition
that a person’s due-process rights are violated by an irrebuttable statutory presumption.
But Vlandis considered a Connecticut statute that classified a student as a nonresident for
the entire period the person attended a state university and did not permit the classification
to be rebutted. 412 U.S. at 442-43, 93 S. Ct. at 2231-32. The Supreme Court held that the
statute violated the students’ rights to due process because it did not allow the students an
opportunity to present evidence that they are bona fide Connecticut residents. Id. at 452-
53, 93 S. Ct. at 2237. Vlandis is not applicable here because relator was provided an
opportunity to rebut the initial disqualification. He simply failed to do so. The conclusive
nature of the unchallenged disqualification does not violate relator’s right to due process.
B. Separation of powers
Relator argues that the Background Stud ies Act “removes from the judiciary the
power to adjudicate guilt for a crime and the power to punish.” The separation-of-powers
doctrine generally prohibits each branch of government from intruding upon another
branch’s unique constitutional functions. State v. T.M.B. , 590 N.W.2d 809, 812 (Minn.
App. 1999), review denied (Minn. June 16, 1999). The j udicial branch will “exercise
restraint when presented w ith a possible separation of powers conflict between the
branches” and “give due consid eration to the equally importa nt executive and legislative
functions.” Ninetieth Minn. State Senate v. Dayton , 903 N.W.2d 609, 623 (Minn. 2017)
(quotations omitted).
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In Riley v. Jankowski , this court considered whet her an administrative-hearing
process violated the separation-of-powers doc trine where an administrative-law judge
determined whether statutory provisions had been violated. 713 N.W.2d 379, 386 (Minn.
App. 2006), review denied (Minn. July 19, 2006 ). In reasoning that the agency did not
usurp the power of the courts to decide criminal cases, we noted that the statute required a
lower standard of proof than proof beyond a reasonable doubt. Id. at 391. This court also
held that an administrative- hearing process did not viol ate the separation-of-powers
doctrine “when a decision rendered in the admi nistrative process is subject to judicial
review.” Id. at 394.
Here, the original administrative decision wa s subject to judicial review, either on
appeal to this court by writ of certiorari, or through an appeal to the district court. See
Minn. Stat. § 256.045, subd. 7 (2016). Likewise, it requires a lower standard of proof than
a criminal proceeding. Thus, the doctrine of separation of powers has not been violated.
C. Hearsay
Relator argues that respondent solely relied on uncorroborated hearsay when
concluding that he committed an act which me ets the definition of fi rst-degree criminal
sexual conduct. In State ex rel. Indep. Sch. Dist. No. 276 v. Dep’t of Ed., the supreme court
stated that “[t]he general rule is that in the absence of a special statute, an administrative
agency cannot, at least over objection, rest its findings of fact solely upon hearsay evidence
which is inadmissible in a judicial procee ding.” 256 N.W.2d 619, 627 (Minn. 1977)
(quotation omitted). The supreme court clarified,
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[I]t is reasonable to assume th at the commissioner is in a
position to judge the inherent trustworthiness and reliability of
the evidence before him. Since the formal hearing requirement
is not to be imposed on the Department in cases of this nature,
it would not be consistent to require strict compliance with the
rules of evidence. Only where it appears that the Department
clearly abused its discretion in relying upon inherently
unreliable evidence, under the hearsay rule or otherwise,
should the courts intervene.

Id. Appellant did not previously challenge the trustworthiness of the evidence relied upon
by respondent in the prior ba ckground studies. Nor di d he previously request
reconsideration or a hearing, during which he could have challenged the evidence proffered
by respondent and offered his own evidence. We do not conclude that respondent clearly
abused its discretion in relying on the unopposed evidence before it.
Affirmed.