Jason Daniel Gustafson, Relator v. Commissioner of Human Services , 884 N.W.2d 674 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1943
Jason Daniel Gustafson,
Relator,
vs.
Commissioner of Human Services,
Respondent.
Filed July 25, 2016
Affirmed
Johnson, Judge
Department of Human Services
License No. 1078693
Patrick W. Michenfelder, Throndset Michenfelder, LLC, St. Michael, Minnesota; and
Eric S. Taubel, Gustafson Gluek PLLC, Minneapolis, Minnesota (for relator)
Kathleen A. Heaney, Sherburne County Attorney, Tim Sime, Assistant County Attorney,
Elk River, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Stauber, Judge; and Kirk,
Judge.
SYLLABUS
Subdivision 3(a) of section 245C.15 of the Minnesota Statutes, which provides that
a person is disqualified from a program licensed by the department of human services for
ten years after “the discharge of the sentence imposed,” applies only to a person who is
disqualified because of a criminal conviction. Subdivision 3(e) of section 245C.15, which
provides, among other things, that a person is disqualified for ten years after “the date the
Alford Plea is entered in court,” applies only to a person who is disqualified because of a
judicial proceeding that does not result in a criminal conviction.
OPINION
JOHNSON, Judge
Jason Daniel Gustafson’s wife applied for a license to operate a child-care program
in their home. The department of human services conducted a background study and
disqualified Gustafson from having direct contact with or access to persons served by the
child-care program until 2020 because he was convicted of criminal vehicular operation in
2003. After Gustafson requested reconsideration, the commissioner of human services
upheld the disqualification but granted a variance that allows a license to issue so long as
Gustafson abides by certain conditions. On appeal, Gustafson challenges his
disqualification on the grounds that the statute authorizing his disqualification is
unconstitutional and that the commissioner erred by denying his request for reconsideration
of his disqualification. We conclude that the statute is not unconstitutional and that the
commissioner did not err by denying reconsideration. Therefore, we affirm.
FACTS
On August 11, 2003, Gustafson pleaded guilty in the Hennepin County District
Court to criminal vehicular operation, in violation of Minn. Stat. § 609.21, subd. 2b(3)
(2002) (renumbered Minn. Stat. § 609.2113, subd. 3(3), by 2014 Minn. Laws ch. 180, § 7,
at 285-86). The criminal complaint alleged that Gustafson caused a multi-vehicle accident
on interstate highway 94 while he was intoxicated and that drivers of two other vehicles
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were injured. Gustafson’s sentence included, among other things, a three-year term of
probation.
In early 2015, Gustafson’s wife applied for a license to operate a child-care program
in the couple’s home in Elk River. Gustafson’s wife was required by the Department of
Human Services Background Studies Act, Minn. Stat. §§ 245C.01-.34 (2014 & Supp.
2015), to submit to a background study, and Gustafson also was required to do so because
he was living in the home where child-care services would be provided. See Minn. Stat.
§ 245C.03, subd. 1(a)(1)-(2). In June 2015, a Sherburne County social worker determined
that Gustafson is disqualified from having direct contact with or access to persons served
by a child-care program because of his 2003 conviction. See Minn. Stat. §§ 245C.14-15.
In July 2015, Gustafson requested reconsideration of his disqualification. See Minn.
Stat. § 245C.21. He argued that the victims of his criminal offense were not seriously
injured, that the offense took place 12 years earlier, that he no longer drinks alcoholic
beverages and has completed a treatment program, and that he would not have any
responsibilities in the child-care program. Gustafson challenged the disqualification by
requesting a set-aside or, in the alternative, a variance.
In September 2015, a deputy inspector general in the licensing division of the
department of human services, on behalf of the commissioner, denied Gustafson’s request
to set aside the disqualification. See Minn. Stat. § 245C.22, subd. 1. The letter ruling
reiterates that Gustafson’s prior conviction is a proper basis for disqualification. The letter
ruling also states that Gustafson’s ten-year disqualification period commenced on April 23,
2010, and expires on April 23, 2020. Even though the commissioner did not set aside
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Gustafson’s disqualification, the commissioner granted a variance, with conditions that
“minimize the risk of harm to people receiving services.” See Minn. Stat. § 245C.30,
subd. 1(a). Specifically, the variance precludes Gustafson from, among other things, being
present when persons served by the child-care program are present, providing
transportation to persons served by the program, or being used as a substitute caregiver.
Gustafson appeals by way of a writ of certiorari.
ISSUES
I. Does section 245C.15 of the Minnesota Statutes violate Gustafson’s
constitutional rights to equal protection or due process?
II. Did the commissioner err by denying Gustafson’s request for reconsideration
of his disqualification?
ANALYSIS
I.
Gustafson argues that section 245C.15 of the Minnesota Statutes, which is the legal
basis of his disqualification, is unconstitutional. His argument is premised on his assertion
that the statute is flawed in its manner of determining the timing of his disqualification. He
contends that, to protect his constitutional rights, his disqualification, which began on the
date he was discharged from his sentence, should have begun on the date he pleaded guilty.
A. Text of Statute
We begin by reviewing the language of the Department of Human Services
Background Studies Act. Under the act, the commissioner shall conduct a background
study on a person seeking a license to operate a child-care program and on certain other
4
persons who will work for a licensed program or will live at a location where licensed
services will be provided. Minn. Stat. § 245C.03, subd. 1(a). The commissioner shall
disqualify a person subject to a background study if the study reveals “a conviction of,
admission to, or Alford plea[1] to one or more crimes listed in section 245C.15.” Minn.
Stat. § 245C.14, subd. 1(a)(1).
If a person is disqualified because of criminal conduct, the duration of the
disqualification depends on the severity of the offense. The most serious forms of criminal
conduct require permanent disqualification. Minn. Stat. § 245C.15, subd. 1. Less-serious
1
In North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), the United States
Supreme Court held that a defendant’s admission of “his participation in the acts
constituting the crime” is “not a constitutional requisite to the imposition of criminal
penalty.” Id. at 37, 91 S. Ct. at 167. The Minnesota Supreme Court expressly approved of
Alford pleas in State v. Goulette, 258 N.W.2d 758 (Minn. 1977). The supreme court held
that, in appropriate circumstances, a district court “may accept a plea of guilty by an
accused even though the accused protests that he is innocent.” Id. at 761. The supreme
court acknowledged that “there are situations” in which a decision to plead guilty despite
a claim of innocence “is a rational decision.” Id. The supreme court cited the example of
the defendant in Alford, who maintained his innocence despite evidence that created a
“strong probability that he would be convicted” of first-degree murder and chose to plead
guilty rather than face the possibility of a death sentence if a jury were to find him guilty.
Id. (citing Alford, 400 U.S. at 37, 91 S. Ct. at 167). Under Minnesota law, an Alford-
Goulette plea is valid if the defendant “agrees that evidence the State is likely to offer at
trial is sufficient to convict” and if the district court independently determines that there is
a strong factual basis for a finding of guilty and a strong probability that a jury would find
the defendant guilty. State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007). “An Alford plea
is an appealing resolution for defendants who, despite maintaining their innocence, have
‘nothing to gain by a trial and much to gain by pleading,’ such as avoiding a harsher
sentence.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015) (quoting Alford, 400
U.S. at 37, 91 S. Ct. at 167). Nonetheless, “A conviction based upon an Alford plea
generally carries the same penalties and collateral consequences as a conventional guilty
plea.” Id. at 880.
5
forms of criminal conduct require disqualification for either 15 years, 10 years, or 7 years.
Id., subds. 2-4.
In this case, Gustafson’s conviction of criminal vehicular operation requires a ten-
year disqualification. See id., subd. 3(a). The disputed issue on appeal is when the ten-
year disqualification period begins to run and when it expires. The commissioner’s
position is that Gustafson’s disqualification period began on the date of “the discharge of
the sentence imposed . . . for the offense.” See id. Based on information that Gustafson
was discharged from his sentence on April 23, 2010 (which date Gustafson challenges as
being incorrect), the commissioner determined that Gustafson is disqualified until April
23, 2020. Gustafson’s position is that his disqualification period should have begun on
August 11, 2003, the date of his guilty plea, and that his disqualification expired on August
11, 2013.
Gustafson’s argument is based on the third sentence of the following paragraph
within section 245C.15, subdivision 3:
When a disqualification is based on a judicial
determination other than a conviction, the disqualification
period begins from the date of the court order. When a
disqualification is based on an admission, the disqualification
period begins from the date of an admission in court. When a
disqualification is based on an Alford Plea, the disqualification
period begins from the date the Alford Plea is entered in court.
When a disqualification is based on a preponderance of
evidence of a disqualifying act, the disqualification date begins
from the date of the dismissal, the date of discharge of the
sentence imposed for a conviction for a disqualifying crime of
similar elements, or the date of the incident, whichever occurs
last.
6
Id., subd. 3(e) (emphasis added). Gustafson acknowledges that he did not enter an Alford
plea but contends that section 245C.15, subdivision 3, is unconstitutional to the extent that
a person who is convicted of a crime after entering an Alford plea is allowed to complete
the ten-year disqualification period sooner than a person who is convicted of a crime after
entering a conventional guilty plea.
B. Interpretation of Statute
The commissioner argues that Gustafson’s constitutional challenge is based on an
incorrect interpretation of the pertinent provisions of the Department of Human Services
Background Studies Act. In her responsive brief, the commissioner states, first, that the
department consistently has interpreted subdivision 3(a) of section 245C.15 to apply if a
person has a criminal conviction of an offense listed in that subdivision, regardless of the
manner of the adjudication of guilt, and, second, that the department consistently has
interpreted subdivision 3(e) of section 245C.15 to apply only if a person is determined to
have engaged in conduct that violates the criminal statutes listed in that subdivision but
does not have a criminal conviction for that conduct. Specifically, the commissioner’s
brief asserts, “DHS has historically interpreted the statute as requiring the Commissioner
to treat all convictions for disqualifying crimes equally, regardless of whether the
conviction was based on a guilty plea, Alford plea or jury verdict.”2 The commissioner
urges the court to adopt the department’s pre-existing interpretation of the statute.
2
The commissioner suggests in her brief that a person could enter an Alford plea but
not have a criminal conviction if, for example, a district court stayed adjudication. See
State v. Martin, 849 N.W.2d 99, 102-03 (Minn. App. 2014), review denied (Minn. Sept. 24,
2014). We also can envision a scenario in which a district court adjudicates a person guilty
7
We begin the task of interpreting a statute by asking “whether the statute’s language,
on its face, is ambiguous.” American Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312
(Minn. 2001). A statute is unambiguous if it is susceptible to only one reasonable
interpretation. Lietz v. Northern States Power Co., 718 N.W.2d 865, 870 (Minn. 2006). If
a statute is unambiguous, we “interpret the words and phrases in the statute according to
their plain and ordinary meanings.” Graves v. Wayman, 859 N.W.2d 791, 798 (Minn.
2015). A statute is ambiguous, however, “if it is reasonably susceptible to more than one
interpretation.” Lietz, 718 N.W.2d at 870. If a statute is ambiguous, we apply “the canons
of statutory construction to determine its meaning.” County of Dakota v. Cameron, 839
N.W.2d 700, 705 (Minn. 2013).
Section 245C.15, subdivision 3, is ambiguous to the extent that it applies to a person
who was convicted of and sentenced for a crime after entering an Alford plea. In that
situation, one reasonable interpretation of subdivision 3 is that the person’s disqualification
period begins to run on the date of “the discharge of the sentence imposed . . . for the
offense.” Minn. Stat. § 245C.15, subd. 3(a). Another reasonable interpretation of
subdivision 3 is that the person’s disqualification period begins to run on “the date the
Alford Plea is entered in court.” Id., subd. 3(e). Confusion may arise because there appear
to be two sources of law, with two different rules, for a person who was convicted of a
crime after entering an Alford plea. Because the language of section 245C.15 is
but does not impose a sentence, which would mean that the person is not convicted of a
crime. See Minn. R. Crim. P. 27.03, subd. 8; State v. LaTourelle, 343 N.W.2d 277, 284
(Minn. 1984).
8
“reasonably susceptible to more than one interpretation” in that situation, it is ambiguous.
See Lietz, 718 N.W.2d at 870.
Because the statute is ambiguous, we may consider the legislative history of the
statute to determine the legislature’s intent. Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d
431, 435 n.2 (Minn. 2009); Arcadia Dev. Corp. v. County of Hennepin, 528 N.W.2d 857,
860 (Minn. 1995). Before 2007, there was no reference to an Alford plea in the act. Minn.
Stat. §§ 245C.01-.32 (2006). In 2007, the legislature amended section 245C.14,
subdivision 1(a), to require the commissioner to disqualify a person not only for a criminal
conviction or an admission to criminal conduct but also for an Alford plea. 2007 Minn.
Laws ch. 112, § 33, at 693. In 2009, the legislature amended section 245C.15 by adding
language to subdivision 3(e) to provide that, if a disqualification is based on an Alford plea,
the disqualification period begins on the date the Alford plea is entered. 2009 Minn. Laws
ch. 142, art. 2, § 29, at 1966-67. These amendments appear to have been designed for the
situation in which a person enters an Alford plea (which, by definition, does not require an
admission to criminal conduct, see Doe 136, 872 N.W.2d at 879-80) but is not convicted
of a crime, either because of a stay of adjudication or because of some other resolution of
a criminal charge in which a sentence is not imposed. We may presume that the legislature
did not intend its references to Alford pleas in sections 245C.14 and 245C.15 to overlap
with its references to criminal convictions, else one provision or the other would be
superfluous. See Owens v. Federated Mut. Implement & Hardware Ins. Co., 328 N.W.2d
162, 164 (Minn. 1983) (stating that “no word, phrase or sentence” of statutes “should be
deemed superfluous, void, or insignificant”). Thus, the 2007 and 2009 amendments to
9
account for Alford pleas indicate that the legislature intended those provisions to apply only
to persons who were not convicted of a crime.
Because the statute is ambiguous, we also may consider the commissioner’s
interpretation of the statute. “[A]n agency’s interpretation of the statutes it administers is
entitled to deference and should be upheld, absent a finding that it is in conflict with the
express purpose of the Act and the intention of the legislature.” Geo. A. Hormel & Co. v.
Asper, 428 N.W.2d 47, 50 (Minn. 1988). In this case, there is no indication that the
commissioner’s interpretation is in conflict with the purpose of the Act, which is to “protect
the children and vulnerable adults who are served by licensed facilities” by “identifying
and disqualifying individuals whose past behavior suggests placing them in direct contact
with children . . . poses an unacceptable risk of harm.” Murphy v. Commissioner of Human
Servs., 765 N.W.2d 100, 106 (Minn. App. 2009). Accordingly, we are inclined to defer to
the commissioner’s interpretation of section 245C.15. See Frieler v. Carlson Mktg. Grp.,
Inc., 751 N.W.2d 558, 567 (Minn. 2008) (interpreting statute in manner consistent with
agency’s interpretation).
In addition, our analysis is informed by the canon of constitutional avoidance.
“Where possible,” appellate courts “should interpret a statute to preserve its
constitutionality.” Hutchinson Tech., Inc. v. Commissioner of Revenue, 698 N.W.2d 1, 18
(Minn. 2005). “The canon of constitutional avoidance comes into play only when, after
the application of ordinary textual analysis, the statute is found to be susceptible of more
than one construction; and the canon functions as a means of choosing between them.”
Clark v. Martinez, 543 U.S. 371, 385, 125 S. Ct. 716, 726 (2005) (emphasis in original).
10
The canon applies only if a statute is ambiguous. State v. Irby, 848 N.W.2d 515, 521-22
(Minn. 2014). If a person convicted after an Alford plea would be relieved from
disqualification at an earlier date than a person convicted after a conventional guilty plea,
it is conceivable that the statute could be declared unconstitutional, as Gustafson contends,
because it would treat similarly situated persons dissimilarly. But the constitutional
infirmity asserted by Gustafson would not arise under the commissioner’s interpretation of
the statute. Under the commissioner’s interpretation, a person convicted after an Alford
plea and a person convicted after a conventional guilty plea would be treated alike in the
sense that each would be relieved from disqualification based on the date of the discharge
of the applicable sentence.
Thus, in light of the legislature’s likely intent when amending sections 245C.14 and
245C.15 to address Alford pleas, the commissioner’s interpretation of section 245C.15, and
the doctrine of constitutional avoidance, we interpret section 245C.15 to make separate
provisions for persons disqualified by a criminal conviction and persons disqualified for
other reasons. Thus, subdivision 3(a) of section 245C.15, which provides that a person is
disqualified for ten years after “the discharge of the sentence imposed,” applies only to a
person who is disqualified because of a criminal conviction, and subdivision 3(e) of section
245C.15, which provides, among other things, that a person is disqualified for ten years
after “the date the Alford Plea is entered in court,” applies only to a person who is
disqualified because of a judicial proceeding that does not result in a criminal conviction.
11
C. Constitutional Challenges
We now turn to Gustafson’s arguments that section 245C.15 of the Department of
Human Services Background Studies Act is unconstitutional. We apply a de novo standard
of review to the question whether a statute is constitutional. Gluba ex rel. Gluba v. Bitzan
& Ohren Masonry, 735 N.W.2d 713, 719 (Minn. 2007). We presume that Minnesota
statutes are constitutional and will declare a statute unconstitutional only “with extreme
caution and only when absolutely necessary.” Id.
1. Equal Protection
Gustafson first argues that section 245C.15 violates his constitutional right to equal
protection.
The Equal Protection Clause of the United States Constitution provides, “No State
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1; see also Minn. Const. art. I, § 2. The federal and state equal-
protection provisions are “analyzed under the same principles.” State v. Johnson, 813
N.W.2d 1, 11 (Minn. 2012) (quotation omitted). Neither provision absolutely “‘forbid[s]
classifications’”; both provisions “‘keep[] governmental decisionmakers from treating
differently persons who are in all relevant aspects alike.’” Id. at 12 (quoting Nordlinger v.
Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 2331 (1992)). In short, “similarly situated
individuals shall be treated alike, but only invidious discrimination is deemed
constitutionally offensive.” State v. Garcia, 683 N.W.2d 294, 298 (Minn. 2004) (quotation
omitted).
12
The threshold issue in our equal-protection analysis is whether the “claimant is
treated differently from others to whom the claimant is similarly situated in all relevant
respects.” Johnson, 813 N.W.2d at 12. This requirement reflects the principle that the
state is not required to treat individuals who are “different in fact or opinion as though they
were the same in law.” State v. Behl, 564 N.W.2d 560, 568 (Minn. 1997). If the threshold
“similarly situated” requirement is satisfied, the next issue is whether there is a “rational
basis” for the different treatment, so long as the statute does not implicate a “suspect
classification or a fundamental right.” Garcia, 683 N.W.2d at 298.
Gustafson contends that section 245C.15 violates his right to equal protection on the
ground that a person who is convicted of a crime after entering a conventional guilty plea
is treated differently from a person who is convicted of a crime after entering an Alford
plea. Gustafson’s premise is incorrect in light of our interpretation of the statute. See supra
part I.B. Thus, Gustafson cannot satisfy the threshold requirement that he “is treated
differently from others to whom [he] is similarly situated in all relevant respects.” See
Johnson, 813 N.W.2d at 12. His failure to satisfy the threshold requirement is a sufficient
basis for concluding that his equal protection claim is without merit. See State v. Cox, 798
N.W.2d 517, 521 (Minn. 2011). Thus, the statute does not violate Gustafson’s
constitutional right to equal protection.
2. Due Process
Gustafson also argues that section 245C.15 violates his constitutional right to
substantive due process.
13
The doctrine of substantive due process is based on the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV,
§ 1. The doctrine “protects individuals from certain arbitrary, wrongful government
actions regardless of the fairness of the procedures used to implement them.” In re
Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (quotations omitted). In the context of
disqualification from a state-licensed program, “due process demands that a statute not be
an unreasonable, arbitrary or capricious interference and requires at minimum that the
statute bear a rational relation to the public purpose sought to be served.” Obara v.
Minnesota Dep’t of Health, 758 N.W.2d 873, 879 (Minn. App. 2008) (quotation omitted).
The first step of the analysis is to ask whether there is a fundamental right at stake.
See Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn.
Nov. 17, 1998). If so, “the state must show that its action serves a compelling government
interest.” Id. (citing In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994)). If there is no
fundamental right at stake, we ask whether the statute has a rational basis, which requires
the state to show only that the statute “is a reasonable means to a permissive object.” State
v. Bernard, 859 N.W.2d 762, 773 (Minn. 2015) (quotation omitted), aff’d sub nom.
Birchfield v. North Dakota, No. 14-1468, 2016 WL 3434398 (U.S. June 23, 2016). The
supreme court recently noted that it is “reluctant to expand the concept of substantive due
process because guideposts for responsible decision-making in this unchartered area are
scarce and open-ended.” State v. Hill, 871 N.W.2d 900, 905-06 (Minn. 2015) (quotation
omitted).
14
Gustafson does not contend that a fundamental right is at stake and does not cite
caselaw suggesting that having direct contact with or access to persons served by a licensed
child-care program is a fundamental right. Accordingly, the question is whether the statute
has a rational basis. See Bernard, 859 N.W.2d at 773. Gustafson cannot establish that the
statute is not “a reasonable means to a permissive object.” Id. (quotation omitted). The
object of the act is to protect the public, particularly “the health and safety of individuals
who are vulnerable due to their age or their physical, mental, cognitive, or other
disabilities.” Obara, 758 N.W.2d at 779. This interest is “paramount.” Id. at 880.
Determining the disqualification periods in the manner described in subdivisions 3(a) and
3(e) is a reasonable means of achieving the object of the act.
Gustafson’s substantive due process claim is based on three specific contentions.
First, he contends that the statute is arbitrary and capricious because it allows a person to
be relieved from disqualification at an earlier date if the person entered an Alford plea
instead of a conventional guilty plea. This contention is incorrect in light of our
interpretation of the statute. See supra part I.B.
Second, Gustafson contends that the statute gives rise to arbitrary and capricious
enforcement because some prosecutors “may be more or less likely to offer deals with
lower offense levels.” The possibility or likelihood that a prosecutor will make different
prosecutorial decisions in different cases does not make section 245C.15 unconstitutional.
“Prosecutors routinely make such decisions” and routinely make “basic choices about
allocating prosecutorial resources,” which “often mean[s] that those who commit the same
crime do not always face the same legal consequences.” In re Welfare of B.A.H., 845
15
N.W.2d 158, 166 (Minn. 2014). But the existence of broad prosecutorial discretion does
not make a statute unconstitutional because, “‘under the separation-of-powers doctrine, a
court should not interfere with the prosecutor’s exercise of that discretion.’” Id. (quoting
State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996) (order), in parenthetical). Rather, a
prosecutor’s “conscious exercise of some selectivity in enforcement” is constitutionally
suspect only if the prosecutor does not have a rational basis for his or her actions. Id. at
165 (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506 (1962)). Gustafson does
not contend that the prosecutor in his 2003 case did not have a rational basis for his or her
actions.
Third, Gustafson contends that the statute is arbitrary and capricious in its
application in this case because the commissioner relied on inaccurate information
concerning the date on which he was discharged from probation. The commissioner
understood that Gustafson was discharged from probation on April 23, 2010, and,
accordingly, decided that he is disqualified until April 23, 2020. Gustafson contends that
he actually was discharged from probation on August 29, 2006. In support of this
contention, he refers to e-mail messages from a Hennepin County probation officer and
updated court records, which appear to indicate that he was discharged on August 29, 2006,
as he contends. But the documents to which Gustafson refers were created after the
commissioner’s decision and, thus, are not part of the appellate record and may not be
considered by this court in this appeal. See Stephens v. Board of Regents of Univ. of Minn.,
614 N.W.2d 764, 769 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). The
commissioner notes in her brief, however, that Gustafson retains the right to seek relief
16
from the commissioner on this ground because he is not precluded “from subsequently
demonstrating . . . the actual date of the discharge of his sentence.” In any event, whether
the information available to the commissioner was correct or incorrect does not affect the
constitutionality of the statute.
For these reasons, the statute does not violate Gustafson’s constitutional right to
substantive due process.
3. Overbreadth
Gustafson last argues that section 245C.15 is unconstitutional because it is overly
broad. This court has stated, “[A] governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.” Obara, 758
N.W.2d at 880 (alteration in original) (quoting Griswold v. Connecticut, 381 U.S. 479, 487,
85 S. Ct. 1678, 1682 (1965)). In general, the overbreadth doctrine is relevant only to a
facial challenge to a statute on First Amendment grounds. See United States v. Salerno,
481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987); State v. Machholz, 574 N.W.2d 415, 419
(Minn. 1998); see also State v. Washington-Davis, ___ N.W.2d ___, 2016 WL 3541745,
at *4-7 (Minn. June 29, 2016). For that reason, this court in Obara declined to consider a
relator’s overbreadth argument to the extent that it challenged other applications of the
statute. See Obara, 758 N.W.2d 880-81. For the same reasons, we decline to consider
Gustafson’s overbreadth argument.
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II.
Gustafson also argues that the commissioner erred by denying his request for
reconsideration of his disqualification.
A disqualified person may request reconsideration of a disqualification decision by
showing that the commissioner relied on erroneous information or that he or she does not
pose a risk of harm to persons served by a licensed program. Minn. Stat. § 245C.21,
subds. 1, 3. If the disqualified person “has submitted sufficient information to demonstrate
that [he or she] does not pose a risk of harm,” the commissioner may set aside the
disqualification.3 Minn. Stat. § 245C.22, subd. 4(a); see also Johnson v. Commissioner of
Health, 671 N.W.2d 921, 923 (Minn. App. 2003). This court reviews the commissioner’s
decision, a quasi-judicial agency decision not subject to the Minnesota Administrative
Procedure Act, to determine whether the decision is “arbitrary, oppressive, unreasonable,
fraudulent, under an erroneous theory of law, or without any evidence to support it.”
Anderson v. Commissioner of Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quotation
omitted), review denied (Minn. Apr. 17, 2012).
In determining whether a disqualified person poses a risk of harm, the commissioner
must consider nine factors: (1) “the nature, severity, and consequences of the event or
events that led to the disqualification”; (2) whether more than one disqualifying event
occurred; (3) the age and vulnerability of the victim of the disqualifying event; (4) “the
harm suffered by the victim”; (5) the “vulnerability of persons served by the program”;
The commissioner does not argue that Gustafson’s set-aside request is untimely.
3
See Minn. Stat. § 245C.24, subd. 3.
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(6) “the similarity between the victim and persons served by the program”; (7) the amount
of time without a reoccurrence of a similar event; (8) whether the disqualified person
successfully completed training or rehabilitation that is pertinent to the disqualifying event;
and (9) any other relevant information. Minn. Stat. § 245C.22, subd. 4(b). “[A]ny single
factor . . . may be determinative of the commissioner’s decision whether to set aside the
individual’s disqualification.” Id., subd. 3.
In this case, the commissioner determined that the first, fourth, fifth, seventh, eighth,
and ninth factors indicated that Gustafson would pose a risk of harm to persons served by
a child-care program. With respect to the first factor, the commissioner found that criminal
vehicular operation is a violent crime, that Gustafson drove with an alcohol concentration
of 0.283, and that two other persons sustained injuries. With respect to the fourth factor,
the commissioner found that both victims experienced physical pain, were treated at a
hospital, and sustained financial harm. With respect to the fifth factor, the commissioner
found that Gustafson’s wife’s child-care program would serve infants and children, who
are particularly vulnerable due to their young age. With respect to the seventh factor, the
commissioner found that Gustafson’s crime occurred 12 years earlier but that he also was
convicted of third-degree driving while impaired (DWI) in 2014. With respect to the eighth
factor, the commissioner found that Gustafson completed probation but had multiple
probation violations, that he is again on probation until 2017, and that he completed a
treatment course in 2014 but that there is a lack of evidence that he presently is sober. With
respect to the ninth factor, the commissioner found that Gustafson has two non-
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disqualifying DWI convictions, that he has attempted to minimize his misconduct, and that
a variance is appropriate.
Gustafson challenges the commissioner’s decision by arguing that his disqualifying
conviction occurred more than 12 years ago, that he will not be responsible for caring for
children in his wife’s child-care program, that he completed a rehabilitation program, that
the ages of the victims of his disqualifying crime are unknown, and that the victims
sustained only neck and back pain. He contends that “there is no rational connection
between the facts and the agency’s decision.”
Gustafson’s argument does not provide any reasons to question the evidentiary basis
of the commissioner’s findings. Rather, he simply challenges the commissioner’s
judgment that, in light of her findings, he is not entitled to a set-aside of his disqualification.
Gustafson’s argument is inconsistent with the limited, deferential nature of certiorari
review, which seeks to “minimize the judicial intrusion into administrative decision-
making” and to “avoid usurpation of the executive body’s administrative prerogatives.”
Tischer v. Housing & Redevelopment Auth. of Cambridge, 693 N.W.2d 426, 429 (Minn.
2005). In addition, Gustafson’s argument ignores the fact that he had a relatively high
alcohol concentration when he committed his disqualifying crime and that he engaged in
similar criminal conduct as recently as 2014.
In light of the relevant facts and circumstances and the deferential nature of our
review, we conclude that the commissioner did not err by determining that Gustafson
would pose a risk of harm to children in his wife’s child-care program and, accordingly,
that a disqualification, with a variance that is based on specified conditions, is appropriate.
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DECISION
Section 245C.15 is not unconstitutional as applied to Gustafson on the grounds that
the statute violates his constitutional rights to equal protection or due process. The
commissioner did not err by denying Gustafson’s request for reconsideration of his
disqualification.
Affirmed.
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