Anderson v. Comm'r of Health

• Decision Date: 30 January 2012
• Docket Number: No. A11–754.,A11–754.
• Citation: Anderson v. Comm'r of Health, 811 N.W.2d 162 (Minn. App. 2012)
• Parties: Michael Scott ANDERSON, Relator, v. COMMISSIONER OF HEALTH, Respondent.
• Court: Minnesota Court of Appeals

811 N.W.2d 162

Michael Scott ANDERSON, Relator,

v.COMMISSIONER OF HEALTH, Respondent.

No. A11–754.

Court of Appeals of Minnesota.

Jan. 30, 2012.

Syllabus by the Court

A health-care worker convicted of criminal sexual conduct and disqualified from providing direct-care health services at state-licensed facilities has no statutory right to have his disqualification reconsidered by the commissioner of health under Minnesota Statutes section 245C.29 to determine whether he poses a risk of harm to patients, because the commissioner has no discretion to set the disqualification aside.

Daniel Guerrero, Meshbesher & Spence, Ltd., Minneapolis, MN, for relator.

Lori Swanson, Attorney General, Audrey Kaiser Manka, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and ROSS, Judge.

OPINION

ROSS, Judge.

The commissioner of health permanently disqualified children's hospital nurse Michael Anderson from working in a direct-care position at licensed facilities after the state convicted Anderson of fifth-degree criminal sexual conduct.Anderson asked the commissioner to reconsider and set aside his disqualification because he contends that he can prove he poses no risk of harm.The commissioner declined, concluding that the Minnesota disqualification statute, section 245C.15, affords him no discretion to grant a set-aside even on a showing of no risk because the disqualification rests on a criminal-sexual-conduct conviction.Anderson argues on appeal that the commissioner's decision is contrary to law and that due process requires a risk-of-harm analysis.Because the commissioner accurately recognized that he lacks discretion to set aside Anderson's disqualification and the failure to conduct a risk-of-harm analysis did not violate Anderson's due process rights, we affirm.

FACTS

Michael Anderson, a children's hospital nurse, stopped at a bar near his Rockford home one evening in December 2009 after Christmas shopping.Anderson claims a partial loss of memory, but he does recall eating, drinking, and playing pull tabs.At some point he was intoxicated and on the dance floor, where he groped a woman's crotch.That's the part he does not remember.A bar employee removed Anderson, and the next week a sheriff's deputy came to his home and told him what he was accused of and that he was being criminally charged.

Anderson entered a Norgaard plea to fifth-degree criminal sexual conduct under Minnesota Statutes section 609.3451(2008).SeeState ex rel. Norgaard v. Tahash,261 Minn. 106, 113–14, 110 N.W.2d 867, 872(1961)(holding that a defendant can plead guilty even though he cannot remember the circumstances of the offense).He told the district court that he could not remember the specific incident, but he acknowledged the accuracy of the prosecutor's case.The district court sentenced Anderson and placed him on probation for two years.

Anderson is a surgical nurse, employed for sixteen years in exceptional standing at Minneapolis Children's Hospital.A year after the bar incident, the Minnesota Department of Human Services(DHS) notified Anderson by letter that his conviction disqualifies him from any position allowing his direct contact with persons receiving services at DHS-licensed facilities, following Minnesota Statutes section 245C.15, subdivision 1(2010).The letter stated that the commissioner had reviewed the conviction and determined that Anderson posed an imminent risk of harm to the peoplehe serves.It also stated that, under Minnesota Statutes section 245C.24, subdivision 2(2010), the disqualification is permanent and the commissioner cannot set it aside or grant a variance.It informed Anderson that he could ask for reconsideration if he believed that the disqualifying information was incorrect.Anderson wrote back requesting reconsideration, asserting that his conviction does not affect his work as a nurse and that he poses no risk of harm to his patients.

Commissioner Edward Ehlinger denied Anderson's reconsideration request in a letter stating that he could not set aside the disqualification regardless of whether Anderson poses a risk of harm and that he could also issue no variance.Anderson again requested reconsideration, this time through legal counsel, maintaining that the statute requires a risk-of-harm analysis.The commissioner again denied the request.Anderson appeals by certiorari.

ISSUES

I.Was the commissioner of health's decision not to apply a risk-of-harm analysis to Anderson's disqualification an erroneous application of law?

II.Did the commissioner of health violate Anderson's due process rights by not conducting a risk-of-harm analysis?

ANALYSIS

I

Anderson argues that the commissioner's decision not to reconsider and apply a risk-of-harm analysis is contrary to law.The commissioner's decision whether to grant a request for reconsideration is a quasi-judicial agency decision not subject to the Administrative Procedure Act,Minnesota Statutes sections 14.63–.69(2010).SeeRodne v. Comm'r of Human Servs.,547 N.W.2d 440, 444(Minn.App.1996).On certiorari appeal from a quasi-judicial agency decision not subject to the Administrative Procedure Act, we examine 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 arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”Id.(quotingDietz v. Dodge County,487 N.W.2d 237, 239(Minn.1992)).

The commissioner of health must periodically check the backgrounds of workers in direct contact with persons receiving services at state-licensed health-care facilities.Minn.Stat. § 245C.03, subd. 1(a)(3)(2010).To do so, the commissioner reviews information from the bureau of criminal apprehension.Minn.Stat. § 245C.08, subd. 1(a)(4)(2010).He must disqualify any of these workers from a position allowing direct contact if the worker has been convicted of a crime listed in section 245C.15. Minn.Stat. § 245C.14, subd. 1(a)(1).That list includes criminal sexual conduct, a crime requiring the disqualification to be permanent.Minn.Stat. § 245C.15, sub. 1(a).

The permanent-disqualification provision notwithstanding, Anderson maintains that section 245C.29, subdivision 2(c), identifies risk of harm as a factor that must be considered when determining the appropriateness of permanency.The argument has at least initial appeal based on the subdivision's language: “If a determination that the information relied upon to disqualify an individual was correct and is conclusive under this section, and the individual is subsequently disqualified under section 245C.15, the individual has a right to request reconsideration on the risk of harm under section 245C.21.”Minn.Stat. § 245C.29, subd. 2(c)(2010)(emphasis added).Anderson urges that the provision implicitly requires the risk-of-harm assessment that he never received.

Despite its initial appeal, Anderson's argument does not survive close scrutiny.Before a 2005statutory amendment, the commissioner responding to a request for reconsideration could set aside a disqualification resulting from a conviction under section 245C.15, subdivision 1(a), if the disqualified worker could establish that he“does not pose a risk of harm to any person” served by the licensed facility.Minn.Stat. § 245C.22, subd. 4(2004).But the legislature amended section 245C.24, subdivision 2, restrictively, so that “the commissioner may not set aside the disqualification ... if the [individual] was disqualified for a crime or conduct listed in section 245C.15, subdivision 1.”2005 Minn. Laws ch. 136, art. 6, § 7, at 985(emphasis added).So despite the language in section 245C.29, subdivision 2(c) providing for a risk-of-harm review, which still applies under other circumstances, the commissioner no longer has discretion to set aside the disqualification of a person in Anderson's situation, convicted of criminal sexual conduct.There is no point in the commissioner's conducting a risk-of-harm assessment in reconsideration of a disqualification that cannot be set aside even if the worker poses no harm.We hold that the commissioner's decision is sound, not resting on an erroneous theory of law.

II

Anderson contends that if the disqualification statute permitted the commissioner to disqualify him permanently from providing direct-care health services without first conducting a risk-of-harm analysis, the statute must be unconstitutional.We review de novo questions of a statute's constitutionality.Associated Builders & Contractors v. Ventura,610 N.W.2d 293, 298(Minn.2000).Anderson maintains that the statute unconstitutionally allowed the state to disqualify him from providing health care directly without due process.Both the United States and Minnesota constitutions provide that a person may not be deprived of life, liberty or property without due process of law.SeeU.S. Const. amend. XIV, § 1;Minn. Const. Art. I, § 7.We review Anderson's challenge under both federal and state precedent because an individual's state-protected and federally protected due process rights are coextensive.Sartori v. Harnischfeger Corp.,432 N.W.2d 448, 453(Minn.1988).

We have some difficulty addressing Anderson's constitutional argument because it is not clearly framed.Anderson's opening brief contends that he was denied “procedural due process” and asks us to evaluate his claims under the three factors announced in the seminal procedural due process case, Mathews v. Eldridge,424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18(1976).But Anderson does not seem to make a procedural challenge; he makes an apparent substantive challenge.He emphasizes, “[W]e are not asking for an evidentiary hearing.We are simply asking that the commissioner...