                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0675

                                    Patrick H. Horan,
                                         Relator,

                                           vs.

                 Department of Employment and Economic Development,
                                     Respondent.

                               Filed December 27, 2016
                                      Affirmed
                                     Reilly, Judge

                 Department of Employment and Economic Development
                                 File No. 34149786-3

Peter B. Knapp, Colin J. Pasterski (certified student attorney), Mitchell Hamline Law
Clinic, St. Paul, Minnesota (for relator)

Lee B. Nelson, Keri A. Phillips, Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent)

       Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

REILLY, Judge

       In this unemployment compensation appeal, relator Patrick Horan challenges the

decision of the unemployment-law judge (the ULJ) that he is eligible for unemployment

benefits, but that his unemployment benefits must be reduced by 50% of his Social Security
old-age benefits, pursuant to Minn. Stat. § 268.085 (2014). On certiorari appeal, Horan

argues that the ULJ misinterpreted the statute, that the statute is ambiguous, and that it

violates his constitutional right to equal protection. We affirm.

                                          FACTS

       The facts of this case are undisputed. In April 2013, Horan applied for Title II Social

Security disability and early retirement benefits, and he received early retirement benefits

because of his age. In September 2013, Horan began working as a bus driver for Center

Line Charters Corporation (Center Line). That same month, the Social Security

Administration revoked Horan’s early retirement benefits, determined that he was entitled

to monthly disability benefits, and enrolled him in the Ticket to Work program. This

program allowed Horan to work while receiving disability benefits. Horan continued to

work as a bus driver until December 2014, when Center Line suspended him. In January

2015, Center Line terminated Horan’s employment. In the interim, Horan applied for

unemployment benefits and the Minnesota Department of Employment and Economic

Development (the department) issued an initial determination that Horan was ineligible for

benefits because he was discharged for misconduct. Horan filed an administrative appeal

and the ULJ affirmed the department’s decision. Horan then filed a certiorari appeal to

this court. In November 2015, we reversed the ULJ’s decision and determined that Horan

was entitled to unemployment benefits.




                                              2
           In March 2015, during the pendency of his appeal, Horan reached the age of 66.

Because Social Security’s full retirement benefits (old-age benefits)1 age is 66, the Social

Security Administration automatically terminated Horan’s disability benefits and enrolled

him in old-age benefits. In December 2015, the department determined that Horan remains

eligible for unemployment benefits but that his weekly unemployment benefits must be

reduced by 50% of the weekly equivalent of his old-age benefits, as required by Minn. Stat.

§ 268.085. The department reduced Horan’s benefits because he did not earn all of his

wage credits while receiving Social Security disability benefits or Social Security old-age

benefits.

           Horan filed an administrative appeal. The ULJ conducted a telephone hearing and

issued a written decision, in which the ULJ concluded that the department did not err by

applying the 50% deduction to Horan’s application. With the assistance of counsel, Horan

requested reconsideration and raised numerous legal arguments. The ULJ rejected Horan’s

arguments and affirmed the decision on reconsideration. This certiorari appeal followed.

                                         DECISION

      I.      The plain language of the statute requires that the department reduce
              Horan’s unemployment benefits by 50% of his old-age benefits.

           Horan first argues that he is entitled to receive full unemployment benefits because

the ULJ misapplied Minn. Stat. § 268.085. The provision of the statute that governs Social

Security old-age benefits provides, in relevant part:

                  (a) Any applicant aged 62 or over is required to state when
                  filing an application for unemployment benefits and when

1
    A statutory term of art.

                                                3
             filing continued requests for unemployment benefits if the
             applicant is receiving, has filed for, or intends to file for,
             primary Social Security old age benefits for any week.

             Unless paragraph (b) applies, 50 percent of the weekly
             equivalent of the primary Social Security old age benefit the
             applicant has received, has filed for, or intends to file for, with
             respect to that week must be deducted from an applicant’s
             weekly unemployment benefit amount.

             (b) If all of the applicant’s wage credits were earned while the
             applicant was claiming Social Security old age benefits, there
             is no deduction from the applicant’s weekly unemployment
             benefit amount.

Minn. Stat. § 268.085, subd. 4(a)-(b) (2014). Because Horan earned less than all of his

wage credits while receiving Social Security old-age benefits, the ULJ determined that the

50% deduction applies. We agree.

      The provision of the statute that governs Social Security disability benefits includes

a similar exemption. This provision provides, in relevant part:

             (a) An applicant who is receiving, has received, or has filed for
             primary Social Security disability benefits for any week is
             ineligible for unemployment benefits for that week, unless:

             (1) the Social Security Administration approved the collecting
             of primary Social Security disability benefits each month the
             applicant was employed during the base period. . . .

             ....

             (b) If an applicant meets the requirements of paragraph (a),
             clause (1), there is no deduction from the applicant’s weekly
             benefit amount for any Social Security disability benefits.




                                             4
Minn. Stat. § 268.085, subd. 4a (a)-(b) (2014). Horan fails to satisfy the statutory

exemption; Social Security did not approve Horan’s collection of disability benefits for

each month he was employed during the base period.

       But Horan argues that he is entitled to receive full unemployment benefits because

the statute is ambiguous—the statute does not include an exemption for individuals who

receive disability benefits and then old-age benefits during the base period.           The

department argues that Horan is not entitled to full unemployment benefits for two reasons.

First, the plain language of the statute requires the department to apply the 50% deduction

to Horan’s application. Second, the legislature’s omission of an exemption applicable to

Horan does not render the statute ambiguous. Statutory construction is a question of law

that this court reviews de novo. Emerson v. Sch. Bd. of Indep. Sch. Dist. 199, 809 N.W.2d

679, 682 (Minn. 2012).

       The department determined that Horan’s relevant base period is October 1, 2014 to

September 30, 2015. See Minn. Stat. § 268.035, subd. 4 (2014). In March 2013, Horan

began receiving early retirement benefits. He continued to receive early retirement benefits

until September 2013, when the Social Security Administration automatically terminated

his early retirement benefits and enrolled him in disability benefits. From September 2013

to March 2015, Horan received disability benefits. In March 2015, Horan reached full

retirement age, and the Social Security Administration automatically terminated his

disability benefits and enrolled him in old-age benefits. But the plain language of the

statute requires that Horan receive all of his wage credits while receiving old-age benefits

or that the Social Security Administration approve Horan’s collection of disability benefits


                                             5
for each month of his employment during the base period. Horan received five months of

disability benefits while earning wage credits. He then received seven months of old-age

benefits while earning wage credits. Given the plain language of the statute, Horan is

ineligible for the old-age benefits exemption in subdivision 4, paragraph (b), and the

disability benefits exemption in subdivision 4a, paragraph (c). The ULJ therefore did not

err by concluding that Horan’s unemployment benefits are subject to the 50% deduction.

       Nevertheless, Horan tries to avoid this result by insisting that the statute is

ambiguous. If Horan “had continued to receive disability benefits throughout the time he

earned [his] wage credits and then became unemployed, he would have qualified for the

disability exemption.” Alternatively, if he “had never qualified for disability benefits but

instead continued to receive retirement benefits throughout the time he earned those wage

credits and then became unemployed, he would have qualified for the retirement

exemption.” In other words, Horan asserts that the legislature’s omission of an exemption

applicable to persons who receive both old-age and disability benefits during the relevant

base period renders the statute ambiguous.

       “When a question of statutory construction involves a failure of expression rather

than an ambiguity of expression,” this court may not “substitute amendment for

construction and thereby supply the omissions of the legislature.” Bolter v. Wagner

Greenhouses, 754 N.W.2d 665, 671 (Minn. 2008) (quotations omitted). When a statute “is

completely silent on a contested issue,” this court will look beyond the statutory language

only if the “silence renders the statute susceptible to more than one reasonable




                                             6
interpretation.” State Farm Mut. Auto. Ins. Co. v. Lennartson, 872 N.W.2d 524, 532

(Minn. 2015) (quotations omitted).

         The legislature enacted a bright-line rule distinguishing persons who are eligible for

the disability or old-age exemption from persons who are close to satisfying the exemption

requirements but are nonetheless ineligible. In drawing this distinction, the legislature

omitted an exemption for individuals who received Social Security benefits for the entire

wage credit period, but do not meet the requirements of subdivision 4, paragraph (b), or

subdivision 4a, paragraph (c). This omission does not render the statute susceptible to

more than one reasonable interpretation. If the legislature wanted to similarly exempt

persons who received disability and old-age benefits during the relevant base period, it

could have. We therefore may not “supply that which the legislature purposely omits or

inadvertently overlooks.”      Rohmiller v. Hart, 811 N.W.2d 585, 591 (Minn. 2012)

(quotation omitted).

         Thus, the ULJ did not err by applying the statute to Horan’s application and

reducing his unemployment benefits accordingly.

   II.      Applying the statute to reduce Horan’s unemployment benefits did not
            violate Horan’s constitutional right to equal protection.

         Horan also argues that applying Minn. Stat. § 268.085 to reduce his unemployment

benefits violates his constitutional right to equal protection. This court reviews a question

regarding the constitutionality of a statute de novo. Haugen v. Superior Dev., Inc., 819

N.W.2d 715, 720 (Minn. App. 2012).            This court presumes the constitutionality of

Minnesota statutes, State v. Barker, 705 N.W.2d 768, 771 (Minn. 2005), and we will



                                               7
“declare a statute unconstitutional only with extreme caution and when absolutely

necessary.” Haugen, 819 N.W.2d at 721. Horan bears the burden of proving beyond a

reasonable doubt that the statute violates a constitutional right. Id.

       The Equal Protection Clause of the United States Constitution guarantees that “[n]o

State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. Like the Fourteenth Amendment Equal Protection Clause,

the Minnesota Constitution provides that, “No member of this state shall be disenfranchised

or deprived of any of the rights or privileges secured to any citizen thereof, unless by the

law of the land or the judgment of his peers.” Minn. Const. art. 1, § 2. Minnesota courts

analyze both clauses “under the same principles,” State v. Johnson, 813 N.W.2d 1, 11

(Minn. 2012), and mandate that all “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).

       Under the equal-protection analysis, the threshold issue is whether Horan is

“similarly situated in all relevant respects” to individuals who earn the entirety of their

wage credits while receiving old-age or disability benefits, but is treated differently from

those individuals. Johnson, 813 N.W.2d at 12. If Horan satisfies the similarly situated

requirement, then this court must address whether there is a “rational basis” for the different

treatment. Garcia, 683 N.W.2d at 298.

       Relying on this court’s unpublished opinion in Baldridge v. Dep’t of Emp’t & Econ.

Dev., 2014 WL 1758274, *5 (Minn. App. May 5, 2014), Horan argues that he is similarly

situated to two groups of claimants who receive unemployment benefits without


                                              8
deductions: applicants who earned all of their wage credits while receiving old-age

disability benefits and applicants permitted to receive both unemployment and disability

benefits without a reduction. As “an applicant that received both benefits,” Horan contends

that he “is similarly situated to both groups.” The department argues that Horan is not

similarly situated to either group for two reasons. First, Horan did not earn all of his wage

credits while receiving old-age benefits. Second, the Social Security Administration did

not approve Horan’s receipt of disability benefits for each month that he was employed

during the base period.

       In Baldridge, the relator challenged a ULJ’s determination that the 50% deduction

applies to his unemployment benefits because he earned less than all of his wage credits

while receiving old-age benefits. Id. at *1, 2. On certiorari appeal to this court, the relator

argued that the statute violated his constitutional right to equal protection. Id. at *4.

Although this court recognized that the relator was not “identically situated” to persons

who earned all of their wage credits while receiving old-age benefits, this court reasoned

that the two groups were “similarly situated.” Id. at *5. We explained that “[a] person

such as Baldridge, who was earning wage credits while receiving Social Security old-age

benefits for eleven months, is fairly similar to a person who was doing so for twelve or

thirteen months, more so than a person who was doing so for only one month.” Id. at *5.

Like the relator in Baldridge, Horan argues that he also earned the majority of his wage

credits while receiving old-age benefits. In essence, Horan asks this court to further soften

the legislative bright-line rule.




                                              9
       But unlike Baldridge, who earned 11 months of wage credits while receiving old-

age benefits, Horan earned only 7 months of wage credits while receiving old-age benefits.

See id. Seven months is substantially less than the 12-month requirement. Horan is

therefore not similarly situated to persons who receive old-age benefits throughout the

entirety of their base period. Unlike persons for whom “Social Security approved the

collecting of primary Social Security disability benefits each month the applicant was

employed during the base period,” Horan collected disability benefits for only five months

of his base period. Thus, Horan is not similarly situated to individuals eligible for either

exemption.

       Rather, Horan is similarly situated to individuals who earned substantially less than

12 months of wage credits while receiving disability benefits or old-age benefits. Like

individuals who earned significantly less than 12 months of wage credits while receiving

old-age benefits, Horan’s weekly unemployment benefit amount must be reduced by 50%

of the weekly equivalent of his old-age benefits.

       Because Horan is not similarly situated to either proposed group, Horan fails to

satisfy the threshold requirement under the equal-protection analysis. Thus, this court need

not address whether the exemptions in subdivision 4, paragraph (b), and subdivision 4a,

paragraph (c), are justified by a rational basis.

       Affirmed.




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