In the Matter of the Petition of Scott Peter Zenanko Under Minn. Stat. 14.381.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1421

In the Matter of the Petition of Scott Peter Zenanko Under Minn. Stat. 14.381.

Filed June 1, 2021
Affirmed
Reilly, Judge

Office of Administrative Hearings
File No. OAH 8-1100-36745

Scott P. Zenanko, Bayport, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Alemayehu Ditamo, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Corrections)

Considered and decided by Reilly, Pres iding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
While appellant served consecutive life terms in prison, the Minnesota Department
of Corrections disciplined him for contacting victims of his crimes. Appellant filed a
petition with the Minnesota Office of Administrative Hearings challenging the restrictions
placed on his communications with the victims. An administrative-law judge dismissed
his petition. Appellant argues that the admini strative-law judge erred when it found that
his petition did not state an appropriate claim for relief. We affirm.

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FACTS
The district court sentenced self-repres ented appellant Scott Peter Zenanko to
consecutive terms of life in prison after a ju ry found him guilty of first-degree felony
murder, first-degree premeditated murder, attempted first-degree premeditated murder, and
burglary. Appellant’s current ap peal arises out of his conti nued attempts to contact, and
subsequent discipline for contacting, two victims of his crimes. The victims do not wish
to have contact with appellant and have found his attempts to initiate contact very upsetting.
In November 2016, appellant first in formed his Minnesota Department of
Corrections (DOC) case manager that “he sent a rude letter” to a victim (Victim 1) of his
crimes and wanted to apologi ze to her. The DOC operates a victim-centered Restorative
Justice Program that, in some cases, allows contact between offenders and victims.
Because of appellant’s desire to apologize to Victim 1, hi s case manager referred him to
the Restorative Justice Program and an apolog y letter workshop, but told appellant not to
have any further contact with Victim 1.
A fundamental requirement of the Restora tive Justice Program is that the victim
initiate contact with the offender through th e DOC. Sometimes after the victim begins
restorative practices, an offender may write th e victim an apology letter. To ensure that
the letter will not revictimize the recipient, offenders may only send apology letters at the
victim’s request and after the DOC review s them. Appellant, however, continued to
contact Victim 1 outside the requirements of the Restorative Justice Program. As a result,
his case manager issued a written order which read: “You are hereby given a direct order
to cease all forms of communication with [Vic tim 1]. This includes written and verbal

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messages passed through a third pa rty. Should you choose to violate this directive, you
may receive a charge for Rule Violation #160 – Disobeying a Direct Order.”
In April 2017, appellant’s case manager received a phone call from a man who had
the same last name as one of appellant’s other victims (Vic tim 2). This man shares no
relation to Victim 2. The man stated that he received a letter from appellant conveying that
appellant believed that he was Victim 2’s father. In the letter, appellant requested contact
with Victim 2. Following this phone call, appellant’s case manager gave appellant another
written order directing him not to contact Victim 2, either directly or indirectly. The order
again confirmed that appellant would be subject to discipline if he contacted Victim 2. At
that same time, appellant’s ca se manager renewed his order not to contact Victim 1.
Appellant appealed these orders to various prison administrators and ultimately, to the
warden who reviewed the orders and supported them.
In June 2019, Victim 2 cont acted appellant’s case manager to report that a private
investigator hired by appellant contacted her. The private investigator informed Victim 2
that appellant wanted to apologize to her. The next month, Victim 1 also contacted
appellant’s case manager to report that appellant contacted her husband through Facebook
and that an individual approached her moth er-in-law to ask if she knew appellant. The
DOC disciplined appellant by placing him in segregation for his failure to obey the orders
prohibiting him from contacting Victim 1 and Victim 2.
Appellant filed a petition with the Minneso ta Office of Administrative Hearings
(OAH) under Minn. Stat. § 14.381 (2020) challenging the restrictions the DOC placed on
his communications with Victim 1 and Victim 2. Appellant argued that the DOC policies

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on prisoner mail and telephone use and the written orders from his case manager were
unpromulgated rules. Appellant also contended that the DOC’s policies violated his due
process and First Amendment rights. An administrative-law judge (ALJ) determined that
appellant did not state an appropriate clai m for relief under Minn. Stat. § 14.381 and
dismissed appellant’s petition. This appeal followed.
DECISION
Appellant challenges the ALJ’s determinat ion that his petition did not state an
appropriate claim for relief under Minn. Stat. § 14.381. Appellant specifically argues that
the DOC failed to properly follow the rulemaking procedures in the Minnesota
Administrative Procedure Act (MAPA), Minn . Stat. §§ 14.001-14.69 (2020), when it
adopted its mail and telephone-use policies a nd issued the written or ders from his case
manager. “Statutory interpretation is a ques tion of law that we review de novo.” J.D.
Donovan, Inc. v. Minn. Dep’t of Transp., 878 N.W.2d 1, 4 (Minn. 2016).
MAPA prescribes specific procedures that an agency must fo llow when it adopts
policies that meet the statutory definition of a “rule.” Minn. Stat. § 14.22. When an agency
violates the statutory rulemaking procedures, it engages in unpromulgated rulemaking and
an individual may petition under Minn. St at. § 14.381 to challenge the agency’s
enforcement of the unpro mulgated rule. “Rule” is “eve ry agency statement of general
applicability and future effect.” Minn. Stat. § 14.02, subd. 4. When the legislature first
defined “rule,” it included all agency activities within the general definition and then, “as
it deemed beneficial to the c oncerns of efficient government and public participation,”
excluded specific activities from the definition. McKee v. Likins , 261 N.W.2d 566, 577

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(Minn. 1977). The legislature exempted the rules of the commissioner of corrections that
related to the supervision and governance of inmates and the internal management of state
prisons. Minn. Stat. § 14.03, subd. 3(b)(1).
Here, appellant argues that the DOC’s mail and telephone-use policies and the
orders from his case manager are unpromulga ted rules. The mail and telephone-use
policies dictate the way inmates may send and receive mail and use the telephone. These
policies relate to the supervis ion of inmates and the internal management of state prisons
and fall within the activities exem pt from the statutory definiti on of a “rule.” The orders
from appellant’s case manager, similarly, are not rules. The orders are not generally
applicable. Instead, they depend on specific facts and prohibit only appellant from
contacting Victims 1 and 2. See Minn. Stat. § 14.381, subd. 1( b) (stating that an agency
determination is not an unadopted rule “when the agency enforces a law or rule by applying
the law or rule to specific facts on a case-by -case basis”). Other inmates remain free to
appropriately communicate with victims who desire contact. We conclude that neither the
mail and telephone-use policies nor the written orders meet the statutory definition of a
“rule.” The legislature did not require the DOC to engage in formal rulemaking procedures
to promulgate these policies or orders.
Appellant also argues that both the DOC mail and telephone-use policies and the
orders violate his constitutional rights. A ppellant’s petition challenged the policies and

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orders under Minn. Stat. § 14.381. 1 The nature of proceedi ngs under section 14.381 is
limited in scope to challenges to agency polic ies as unpromulgated rules. Section 14.381
does not provide an avenue for individuals to raise constitutional claims.
Because the DOC’s policies on mail and te lephone use and the orders do not meet
the statutory definition of a “rule,” and because Minn. St at. § 14.381 do es not permit
appellant to raise constitutional claims, we conclude that the AL J properly dismissed
appellant’s petition for failing to state an appropriate claim for relief.
Affirmed.

1 To the extent that the ALJ considered the merits of appe llant’s constitutional claims, it
exceeded the scope of its aut hority. “[A]n administrative agency lacks subject matter
jurisdiction to decide constitutional issues because those questions are within the exclusive
province of the judicial branch.” Holmberg v. Holmberg , 578 N.W.2d 817, 820 (Minn.
App. 1998), f’d, 588 N.W.2d 720 (Minn. 1999).