Mammenga v. State Department of Human Services
442 N.W.2d 786
Minn.
1989
Check Treatment

*1 786 respondent respondent s tes The conduct of here cannot

The referee found Therefore, July 1 and be condoned. we concur timony as to what on occurred findings respondent’s referee’s con- July respondent’s If 28 was not credible. 8.4(c) (d) duct violated both Rules and against only that testimony pitted had been Rules of Minnesota Professional Con- counsel, opposing it would have been duct. very that the referee’s find difficult find “full, ings clear and were based on the Respondent publicly reprimanded is and Here, convincing evidence.” pay pursuant shall costs to Rule $750 judge

trial McKin- court has substantiated 24(a) plus pursuant disbursements to Rule transpired during July 1 nis as to what 24(b) Lawyers of the Rules of Professional July hearing. at the conference call and Responsibility. judge’s While it is recollection true that clear, entirely

of these events is not he unequivocally

stated that he did not indi going

cate how he was to rule on the

parties’ respondent motions and that

agreed until after to hold check disputed

matter had resolved. When been exist, questions great

fact afford we Mary MAMMENGA, Respondent, weight findings. to the referee’s In re Simmonds, 673, (Minn. 415 N.W.2d 1987). especially is This true when the STATE of Minnesota DEPARTMENT dispute presented by conflicting is testimo SERVICES, al., HUMAN et OF ny. 382, Daffer, See In re 344 N.W.2d Petitioners, Appellants. (Minn.1984)(the opportuni referee had the ty to observe and evaluate the No. C1-88-512. evidence, accepted and the court his evalua Supreme Court of Minnesota. respondent’s character). tion of The ref respondent’s eree’s choice to disbelieve tes July 1989. full, timony supported by clear and con vincing evidence and no basis exists for

deeming clearly it erroneous. question respon- remains whether (a) failing

dent’s conduct in abide his

agreement with opposing the court and

counsel, (b) disclose his exercise of his at- lien,

torney’s (c) obey trial court’s money

order to surrender the violated the

Minnesota Rules of Professional Conduct. are, all,

Attorneys first of officers of the

court and highest duty. owe their See In Lord, 370, 375,

re 255 Minn. 97 N.W.2d duty imposes This an obli-

gation attorneys on all to be truthful dealings opposing

their with both counsel Furthermore,

and the court. if courts can- attorneys agreements

not trust to honor orders, obey their then the administra- justice

tion of greatly impaired becomes

and the ability courts’ to function is threat-

ened. *2 Gen., III, Humphrey, Atty. H.

Hubert Gen., Paul, Kirwin, Atty. Asst. St. L. John Wilhelm, County Martin and D. Gerald Fairmont, petitioners, appellants. for Atty., Thomas, Southern Minnesota Charles H. Services, Inc., Mankato, for Legal Regional respondent.

SIMONETT, Justice.

We conclude as- was denied (GA) is valid rule. We sistance appeals. reverse the court benefits, for GA eligible To be and finan- certain income be without must must also resources since cial ongo- categories within come one ing eligibility. categories, Respondent challenged These 16 in the termination number, legisla- of her GA were installed the 1985 benefits before the local three- county department human eligibility ture to limit services *3 then expec- is before Commissioner of Human whom not a realistic Services, appeal no Her (1988), but to avail. to the tation. Thus 256D.05 Minn.Stat. § district court was also unsuccessful. categories, sets She provides out these appealed then appeals, to the court of part qualifies person being that a as agency’s which reversed the order termi financial need is entitled to assist- ' nating Mammenga benefits. v. State person ance if the is— Services, Dept. 428 Human N.W.2d 832 of (10) person completing secondary a a ed- (Minn.App.1988). granted Depart We program; ucation agency’s petition ment’s and the local for or further (Although respondent review. has (12) person who has substantial barri- completed program, now her GED her case employment, including ers to but not is not departmental moot because of claims relating limited to factors to work or paid.) for reimbursement of benefits training history, as determined (and appeals Before the court of before the local in accordance with us), Mammenga’s argument Ms. has been permanent emergency or rules that the Commissioner cannot rule limit adopted by the commissioner after statutory category “secondary of edu- consultation with the commissioner program” cation “completing high jobs training[.] of school,” thereby effectively excluding GED appeal This involves Minn.R. 9500.1258 any instruction of number of hours as a (1987),adopted by the Commissioner of Hu- secondary program. education The court implement man Services to the two statu- appeals, of sue, did not reach this is- tory categories quoted. catego- above Instead, it held that item M of the ry “completing secondary of requiring rule 6 hours GED instruction program” interpreted is in item K of the because, was unreasonable as to Ms. Mam- rule to applicant recipient be: “The or is menga living and others like her in rural completing school.” Minn.R. 9500.- Minnesota for whom no GED 1258, (1987). subp. IK Item M of the rule requisite available, hours was the rule elaborates on the “substantial barriers to arbitrary, capricious was “invalid as employment” category regu- to include “is unreasonable.” Id. at 838. larly attending a GED Education [General We will discuss first the “6 hours of Development] program, with a minimum of instruction” rule and then “completing six hours of classroom per instruction high school” discussing rule. Before either 9500.1258, 1M(8) week.” subp. Minn.R. rule, however, might helpful to com- (1987). ment on the standard of review. February respondent Mary 1986 Mam- I. menga, age began receiving GA bene- qualified fits. She Department’s under the declaratory judgment This is not a action emergency rule then effect as a brought under sections 14.44 and 14.45 of “regularly attending a program.” Act, the Administrative Procedure Minn. Mammenga Ms. attended a GED course in (1988), Stat. ch. 14 validity to determine the Fairmont, Minnesota, evening one a week prior of a rule to its enforcement. See for 2 hours. This was the GED in- Housing Institute v. Pet Manufactured struction offered tersen, local school (Minn.1984)(exam dis- 347 N.W.2d 238 When, however, trict. permanent ple pre-enforcement Rather, rules challenge). August went into effect in validity Ms. Mam- challenged of the rule is here in menga could not meet involving appeal contested case an week, 6 hours of per classroom instruction decision of the Commissioner of Human and she was denied further benefits. public case, Services in a 256.045, pre-enforcement in a direct chal tioned brought pursuant Minn.Stat. § or, here, lenge hearing. in a contested (1988). may, validity Housing, N.W.2d course, in a contested challenged Manufactured (pre-enforcement 238. Both section 14.45 Housing, case. Manufactured (contested challenge) and section 14.69 N.W.2d at 240. case) list the violation constitutional in a judicial The standard of review judicial (But aas basis for review. visions governed by contested case not, does unlike section section 14.45 statute, 14.69 Under “arbitrary capricious” ground or as a list may, among specified grounds, other court pre-enforcement review chal because *4 decision whether an administrative decide lenge agency does of an not involve review provision, in of a constitutional is violation case.) in particular decision statutory authority, or is in is excess case, In it the is clear that may arbitrary capricious. The decision and in Commissioner’s decision is reasonable provision in of a constitutional be violation it is a principled the sense that decision. if, rule example, agency applied for the Depart the applied The Commissioner as to the decision lacks rational basis so rule properly ment’s to the facts of Ms. process. This denial of due constitute a Mammenga’s case. The rule itself is un is, however, dif kind of unreasonableness ambiguous undisputed. the facts are kind of unreasonableness ferent from the rule, following own as it re In its was “arbitrary agency that renders an decision do, Department acting to quired the Skor, generally capricious.” D. or reasonably; arbitrary its decision was not Cases,” Review of “Judicial Contested capricious. or Procedure Minnesota Administrative 13.4.2(6) (1987). 13.4.2(1) and Sometimes, applying a rule in a con §§ case, a factual situation that did not tested agency may arbi An decision rulemaking process during the will surface if trary capricious or the decision is based light to and show that rule as come devoid reasons. on whim or is of articulated newly applied to the revealed situation Bd., Markwardt v. State Resources Water legislative lacks a to the rational connection 371, (Minn.1977) (an agen 374 254 N.W.2d is objectives. It is in this sense that it capricious cy arbitrary decision is or where that a rule is invalid “as sometimes said its represents “its determination will and See, e.g., Broen Memorial Home applied.” a decision say that judgment.”). not its To Services, Dept. Human v. Minnesota not, is the same is unreasonable 436, (Minn.App.1985). 440 364 N.W.2d rule agency thing as is saying out, points applied in is As the Commissioner the decision unreasonable. (and use The rule is unreasonable there there is some confusion itself Here, invalid) applied.” it comport phrase fore when fails to “unreasonable as example, to process appeals it the court of seems substantive due because is because, rationally objective sought suggest to to the rule is invalid as related that See, Herbst, e.g., Mammenga. it Contos v. applied, be achieved. is unfair to Ms. 732, (Minn.1979) fact, however, (“Where application 741 mere 278 N.W.2d that involved, may regulation pro yield an economic is due a rule harsh or undesirable requires in a not make legislative particular cess that enactments result case does Filburn, the rule invalid. Wickard v. arbitrary or, 317 capricious; not be or stated 91, 111, 129-30, 82, 63 87 L.Ed. differently, they be a reasonable U.S. S.Ct. 526, Sima, Tepel v. (1942); appeal objective.”), to 213 Minn. permissive means 122 dismissed, 532, (1942) (following 804, 24, 536, 444 100 62 7 537 U.S. S.Ct. N.W.2d Wickard). Tri say a is as See also Sisson v. L.Ed.2d 17 To “invalid if, 565, (Minn.1988); as plett, that the rule is invalid applied” 428 N.W.2d 571 means (Minn. in a due Hopf, State employed, 323 N.W.2d it is unreasonable i.e., sense, 1982). is not rational applies that the rule This same rational basis test cess legislative sought to validity ques ly related ends whether of the rule is Broen, legislation provides 364 N.W.2d at rule. The 1985 be achieved. See (“The poor persons reasonableness a rule is those who come within sought the end to be specified categories viewed toward certain are to receive application light achieved and not in of its general assistance. The issue not wheth- particular party.”). to a policy (legislative er this is wise wisdom is legislature), agen- but whether the Dalsin, Paul v. 245 Minn. St. cy’s rationally legisla- rule is related to the (1955), N.W.2d 855 illustrates distinc- policy. ture’s enunciated One of the statu- being city tion made here. There ordi- tory categories is for with “sub- roofers, required incidentally nance in- employment.” leg- stantial barriers to flashing roofing, stalled sheet metal while islature agency instructed the to establish qualified heating, do air warm by rule what these barriers would be. ventilation, metal work. sheet rule, its identified a number of The court held the ordinance invalid and living such barriers in a local labor mar- roofers, unenforceable as to not because ket with no suitable or attend- the ordinance was unfair to a GED with a minimum 6 (although may the defendant roofer *5 have per hours of classroom instruction week. been), licensing require- but because the agency The felt that a time commitment of any ment “has no reasonable relation to many obtaining that hours in an education justifiable regulation roofing of the trade.” would holding substantial barrier to at Id. N.W.2d at 859. Insofar as meaningful job. roofers, the ordinance related to the court concluded that the ordinance “must be held agency’s We think the rule ahas rational (emphasis added). unconstitutional” Id. Attending basis. school 6 hours a week case, time) tben, (plus study inquiry

In this is a our is to deter- reasonable definition mine if of a holding the “6 hours GED” rule is substantial barrier to outside rational- ly employment. A sought related to the rule which legit- ends to be would define only 2 imately hours of by general achieved the classes a week as an em- assistance ployment patently statute. barrier would seem to be Indeed, respondent unrealistic. Mammen- II. ga otherwise, has never claimed and the evidence' rural shows communities The limit appeals court of held the rule only GED classes to a few hours requiring a week so 6 hours of GED instruction to be job not to interfere with commitments. presented invalid. Evidence at the contest hearing ed case great established that the Interestingly enough, the rule as first majority of communities outside the metro proposed by the Commissioner stated that area offer less than 6 hours of GED classes recipient a GA with a substantial barrier to Only in Minneapolis-St. week. the Paul would be a who “is programs area are GED of 6 hours a week completing program, a GED the time com- quite panel, therefore, common. The rea precludes mitment of which participation in (1) purpose general soned: the of assist work proposal readiness.” This was criti- (2) help poor; ance is to poor people the cized because it left too much discretion to outside the qualify metro area cannot the local eligibility. determine by GA enrolling in a GED criticism, To meet this the Commissioner gram because GED in those ar proposed amended the rule to establish a eas do not offer 6 hours a required week as bright per line of 6 hours of GED classes rule; (3) consequently, rule, fact, week. In the 6-ho'ur though uniformly applied, unfairly and un request representative added at the of a of reasonably participation bars rural in the Legal Advocacy Project, Services and therefore, is invalid. objection over the Hennepin County that difficulty analysis with this is that it participation GED is never a substantial perceived is directed at a unfairness in employment. barrier Contrary to the scheme, legislative Department’s appeals panel, concern of the might we Commissioner, hand, add, here on the other rulemaking record was more argues “secondary pro- support the 6-hour rule adequate to than rulemaking gram,” properly understood within requirement. The record var- the con- rule; general program, some text of the assistance ies with nature evidentiary may record refer school. The cases a substantial should Com- needed, Housing, points as in missioner to the definition of “sec- Manufactured cases, knowledge” while in “common ondary other in the school law. school” See (1988) will suffice. gen- 2(3) or “common sense” (“any § * * * Muck, T. “Need and erally G. Beck and pupils with school enrollment ordi- * * * Change,” and Substantial Reasonableness narily grades through meet- Minnesota Administrative Procedure standards established state case, the 23.2 In this issue was education.”). Respondent board coun- programs in rural many not how Department citing ters the rule of the hours instruction Minnesota offered 6 equivalency Education that a GED certifi- many per how hours of GED week but comparable diplo- cate is to a attended without inter- instruction could be (1987). Also, ma. See Minn.R. 3500.3100 job. fering holding argues respondent, general assistance poor, program is directed at the adult but rationally We hold the 6-hour rule, by limiting eligi- the Commissioner’s purposes of the related to the 1985 amend- (in bility attending high to those statute, ments to the words, 21), age other those under excludes is reasonable valid. that the rule people age from GA benefits over 21 who *6 seeking secondary are During a education. III. process, representative rulemaking the the the issue We now reach which was Legal Advocacy Project Services appeals. not the court of This reached these very objections, contending made might issue framed as be follows: defin the authority Commissioner lacked to secondary “completing a education eligibility limit of GED students gram” high school,” “completing as did the through rulemaking. statutory authority? its exceed purpose The the 1985 amendments is legisla- It will recalled that the be to to make GA assistance available those categories ture assist- established poor people expected cannot hold who be to these, eligibility. ance One which we disability either because or discussed, just have “substantial bar- spend they because must substantial time category. employment” riers to Another is (such specified schooling) as on activities “completing secondary pro- a education preclude employment. general See gram.” Respondent a pro- contends GED (Minn. ly Smaby, 405 N.W.2d 254 gram secondary Ward program. is a education App.1987). secondary true, Having If a school ed says Mammenga, this is Ms. then in obtaining ucation would be valuable em statutory Commissioner exceeded his therefore, first, legislature excluding ployment in authority, GED instruc- secondary “completing program provided person tion from the education that a a sec and, second, ondary program” in category, requiring education GED school would eligible Implicit instruction to consist of at 6 class- be for GA assistance. least Nothing grant per eligibility, room hours week. the stat- says secondary recipient attending ute program a education realization that a job. must not a have a minimum number of class- would have time to hold week; and, therefore, Commissioner, distinguished per room hours as be points out, person obtaining emergency prom- secondary the initial tween a school, ulgated by by attending high lumped the Commissioner to- school education gether category traditionally occupation, single “people as a full-time and a equivalent are or are going obtaining in a an education G.E.D. program.” program attending a GED where the requisite may eligible is much more lenient. number of hours time commitment consistent with the category, may This distinction is also under another or at least be legislative descriptions of the two kinds of eligible program. for the “work readiness” schooling. legislature refers to Having sweeping changes in mind the as an “adult basic and con general inaugurated by law program,” as tinuing a “sec education amendments, the 1985 we do not think it Minn. ondary program.” education See impermissible unreasonable or for the Com- Further, 124.26, subd. lb Stat. § interpret “completing missioner’s rule to specifically distinguish be the statutes secondary program” complet- education as elementary “program tween a of an or ing high school when who are at- secondary and “course for a school” work tending GED classes a few hours a (GED) general development educational di support week are able to themselves and 256.736, ploma.” participate program. in the work readiness 3b(a)(2)(i) (ii)(1988). Consequently, the “high We hold that school” rule is “completing a sec Commissioner defined valid. ondary program” “completing education Nevertheless, recognizing school.” Reversed. fairly that some GED involve a commitment, time the Commis substantial WAHL, (dissenting). Justice sioner, category separate in the of “sub employment,” stantial included barriers I respectfully ques- must dissent. The person attending program requir a GED tion is not whether the commissioner can ing at least 6 hours of instruc classroom validly, though unfairly, enforce Minn.Rule per tion week. 1M(8) (1987), subp. requiring 6 per hours against week of GED instruction agency’s While we are not bound an Mary Mammenga, but whether she is interpretation governing statute, of its it is “completing secondary pro- meaning also true that of a “[w]hen gram” eligible doubtful, so as as- give statute is courts should *7 great sistance under weight placed upon to a benefits Minn.Stat. construction Department charged 256D.05, l(a)(10) (1988). with its ad subd. § ministration.” Krumm v. R.A. Nadeau legislature enacted Minn.Stat. Co., (Minn.1979). 276 N.W.2d provide general 256D.01 to 256D.21 to §§ Hopf, also at N.W.2d 752. (GA) persons pro- assistance “to unable to We believe that the Commissioner had vide themselves with a reasonable subsist- authority interpret phrase to “com- compatible decency ence with and health pleting secondary program” a education provided and who are not otherwise interpretation parts and that the set in out under the laws of this state or the United M(8) K and of the rule is light reasonable in 265D.02, States.” Minn.Stat. subd. 4 § purpose general of the 1985 assist- (1988). requirement There is no that such legislation. strengthened ance This view is persons popula- reside in or near one of the legislative the fact that the scheme also tion centers of the state. includes a “work program readiness” to Mary Mammenga, age lives in rural marginally employable persons assist who throughout Minnesota. She has claimed specified do not fit within one of the cate- litigation she is entitled to gories eligibility. for GA 256D.05, eligibility under § (1988). eligi- 256D.051 There is a further § l(a)(10) “completing subd. because she is a too, bility category, for a deter- secondary program.” education She was specialist mined a vocational “to be un- only secondary enrolled in the education able to employ- obtain or retain suitable program her, 9500.1258, available to subp. 1M(4) pro- ment.” Minn.R. G.E.D. words, gram Fairmont, Minnesota, recipient other in pro- unable to attend a GED with the weekly vided two hours of in- classroom secondary only programs effort” education good made struction.1 She available to them.” indeed, program comple- continued Nonetheless, Mammenga’s GA bene- tion. plain Because words Minn.Stat. Depart- were because the fits terminated 256D.05, l(a)(10) subd. mean more than § Services, through Minn. ment of Human school, high scope of because the Clause 10 9500.1258, IK, subp. interpreted the Rule high is not limited to attendance in only persons com- statute to mean those and because the commissioner’s rulemak- ing programs operates on pleting high eligible school are to receive GED arbitrari- poor ly exclude most rural 265D.05, benefits under subd. GA § establishing eligibility Minnesota from GA l(a)(10). Mammenga was not Since attend- by pursuit program, of a GED I would hold program, “high school” but a GED Department Human Services Rule from she further excluded limiting eligibility under Clause 10 to 256D.05, l(a)(12) under subd. because her § attending those school to be unreason- program did meet the six-hour able. subp. of Minn.Rule 1M(8). KEITH, (dissenting). Justice interpreta- The Commissioner’s narrow join I in the dissent of Justice WAHL. 256D.05, l(a)(10) equating tion “secondary program” “high with education pur-

school” with the fundamental conflicts

pose expressed act the GA

statutory language. chapter requires

Nothing in 256D

GA benefits should extended people job

those who are to hold unable Minnesota, Respondent, STATE of time restraints. Clause 10 of because of 1(a) quite clearly par- subdivision envisions ticipation secondary GOULETTE, Dale Kenneth other than traditional no Petitioner, Appellant. hint of a minimum time commitment to No. CX-88-1173. satisfy requirements eligibility. of GA Minnesota. Supreme Court of education, secondary Persons without *8 whether evidenced lack of a July 21, 1989. diploma certificate, or lack of GED are severely disadvantaged obtaining em- legislature intended

ployment. The provided to such disadvan-

taged willing are adults who remove the obtaining employment by

barrier to equivalent. its diploma or GED As notes, Legislature

respondent rightly “the deny a

could not have intended to minimum compatible decency

subsistence

health to individuals such as good doing

Mammenga who faith are power complete their

everything within weekly availability classroom instruc- survey less than six hours 1. A of GED classroom throughout revealed instruction the state tion. provided majority of rural GED