                              STATE OF MINNESOTA

                                IN SUPREME COURT

                                      A15-0715

Workers’ Compensation Court of Appeals                                   Lillehaug, J.
                                                              Took no part, Hudson, J.

Kelly Dennis,

             Respondent,

vs.                                                           Filed: February 3, 2016
                                                            Office of Appellate Courts
The Salvation Army and Chesterfield Services, Inc.,

             Relators,

and

HealthEast Physician Services,
HealthEast St. John’s Hospital,
High Pointe Surgery Center,
Minnesota Department of Human Services/BRS,
St. Croix Orthopaedics, and
Nurse Anesthesia Services, P.A.,

             Intervenors.
                             ________________________

James A. Batchelor, Batchelor Law Firm, Minneapolis, Minnesota, for respondent.

Mark A. Kleinschmidt, Thomas F. Coleman, Cousineau McGuire Chartered,
Minneapolis, Minnesota, for relators.

Charles A. Bird, Grant M. Borgen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota
and Scott A. Wilson, Minneapolis, Minnesota, for amicus curiae Minnesota Association
for Justice.
                            ________________________




                                           1
                                     SYLLABUS

       Because relators did not timely serve a cost bond upon the Workers’

Compensation Court of Appeals as required by Minn. Stat. § 176.471, subd. 3 (2014), the

writ of certiorari is discharged and the appeal is dismissed.

       Appeal dismissed.

                                       OPINION

LILLEHAUG, Justice.

       Minnesota Statutes § 176.471, subd. 3 (2014) provides: “To effect a review upon

certiorari, the party shall serve . . . a bond upon the administrator of the Workers’

Compensation Court of Appeals within the 30-day period [for seeking review].” This

case requires us to determine whether timely service of that bond is mandatory in order

to “have [the WCCA] order reviewed by the Supreme Court on certiorari,” id., subd. 1.

Because timely service of the bond is required, but was not accomplished here, we must

discharge the writ of certiorari and dismiss this appeal.

                                             I.

       On February 8, 2013, Kelly Dennis slipped, fell, and injured his left knee.

Alleging that the injury arose out of, and in the course of, his employment with The

Salvation Army, Dennis filed a claim petition for workers’ compensation benefits. The

Salvation Army and its insurer, Chesterfield Services, Inc. (collectively relators), denied

liability.

       By findings and order filed September 4, 2014, the compensation judge awarded

Dennis benefits. Relators appealed to the Workers’ Compensation Court of Appeals


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(WCCA). By decision and order filed April 10, 2015, the WCCA affirmed the findings

and order of the compensation judge. Relators had 30 days from the date they were

served with notice of the order to have the order reviewed by this court on certiorari.

Minn. Stat. § 176.471, subd. 1.

      On April 28, 2015, within the 30 days, relators filed a petition for a writ of

certiorari with the clerk of the appellate courts, and in return, the clerk provided relators

with a conformed writ. Relators served the conformed writ, the petition, and a statement

of the case on Dennis, intervenors, and the WCCA on April 30, 2015. That same day,

the clerk issued a notice of case filing that provided the parties with the appellate file

number and noted that relators had not provided the required affidavit of service for the

issued writ. Relators provided the required affidavit the next day.

      But there was something else missing from relators’ April 28 filing: a cost bond.

On May 6, 2015, the WCCA notified the clerk that relators had not served a cost bond on

the WCCA as required by Minn. Stat. § 176.471, subds. 3 & 5.

      By order filed September 15, 2015, we directed the parties to file informal

memoranda addressing whether a cost bond was served on the WCCA and, if not, what

effect, if any, the deficiency had on the appeal. Upon receiving our order, relators served

a cost bond on the WCCA.          Relators also filed a memorandum, arguing that the

“imperfect filing of a cost bond” did not affect the court’s authority over the appeal, that

the court had the authority to extend the time for service of the cost bond, that there had

been no prejudice to Dennis, and that any deficiency had been waived by Dennis’s

silence.


                                             3
      For his part, Dennis argued that the plain and unambiguous language of Minn.

Stat. § 176.471 required timely service of a cost bond to “effect” this court’s review.

Dennis further argued that both the alleged lack of prejudice and the alleged waiver are

irrelevant to the legal question presented: whether the court has the authority to review

the WCCA decision.

                                            II.

      Decisions of the WCCA are reviewable by this court on certiorari. Review must

be sought within 30 days from the date a party has been served with notice of the WCCA

order. Minn. Stat. § 176.471, subd. 1. The Legislature has established a series of steps

for judicial review by certiorari. First, the relator must file a petition for a writ of

certiorari with the clerk of the appellate courts, who issues the writ.1 The relator then

serves the issued writ and a cost bond on the WCCA. The cost bond, which “shall be

executed in such amount and with such sureties as the Workers’ Compensation Court of

Appeals directs and approves,” must be “conditioned to pay the cost of the review.”

Minn. Stat. § 176.471, subd. 5. Service of the writ of certiorari and the cost bond

operates “[t]o effect a review upon certiorari.” Minn. Stat. § 176.471, subd. 3 (“To effect




1
      Many of the steps for review of WCCA decisions are also found in the Minnesota
Rules of Civil Appellate Procedure. See Minn. R. Civ. App. P. 116.02 (“The petition and
a proposed writ of certiorari shall be filed with the clerk of the appellate courts.”).




                                            4
a review upon certiorari, the party shall serve the writ of certiorari and a bond upon the

administrator of the [WCCA] within the 30-day period referred to in subdivision 1.”).2

       Then, “[w]hen the writ of certiorari has been served upon the [WCCA], the bond

has been filed, and the filing fee has been paid, the [WCCA] shall immediately

transmit to the clerk of the appellate courts that filing fee and the return to the writ

of certiorari and bond.” Minn. Stat. § 176.471, subd. 6. “Filing such return and

payment of the filing fee . . . vests the Supreme Court with jurisdiction of the case.”

Minn. Stat. § 176.471, subd. 7. “Within 30 days after the writ of certiorari, bond, and

filing fee have been filed” with the WCCA, the WCCA transmits to the clerk of the

appellate courts “a true and complete return of the proceedings of the [WCCA] under

review . . . .” Minn. Stat. § 176.471, subd. 8.

                                           III.

       Relators concede that they did not comply with the requirement of Minn. Stat.

§ 176.471, subds. 3 & 5, that “to effect review,” the cost bond must be served within the

30-day period to appeal. The question is whether that deficiency is fatal to their appeal.

       We conclude that it is. The plain and unambiguous purpose of the cost bond is

“to effect review upon certiorari.” “Effect,” as used here, means “to cause to come into

being.”   Merriam-Webster’s Collegiate Dictionary 724 (10th ed. 2001).           See also


2
       Our rules similarly require service of a copy “of the petition and writ upon the
court or body to whom it is directed and upon any party within 30 days” after the relator
was served with written notice of the decision to be reviewed. Minn. R. Civ. App. P.
116.03, subd. 4. The relator must also “file the bond or other security required by statute
or by the Supreme Court.” Minn. R. Civ. App. P. 116.03, subd. 2.


                                             5
Black’s Law Dictionary 533 (7th ed. 1999) (“effect: To bring about; to make happen”).

The exclusive method the Legislature has provided for our review of WCCA decisions

is by certiorari. Thus, we read “to effect review upon certiorari,” in combination with

the 30-day time limit, to mean that the review does not come into being—in other

words, does not happen—unless and until both the writ of certiorari and the cost bond

are timely served. Put another way, a relator cannot invoke the right of review by

certiorari without following each of the steps established by the Legislature. State ex

rel. Ryan v. Civil Serv. Comm’n, 278 Minn. 296, 301, 154 N.W.2d 192, 196 (1967)

(recognizing that when certiorari review is authorized by statute, “the statutory

provisions must be strictly construed”).

       Our reading is reinforced by the words that come after the phrase, “to effect

review upon certiorari.” This portion of the statute commands the party seeking review

to serve the writ of certiorari and the cost bond. Minn. Stat. § 176.471, subd. 3 (“the

party shall serve a writ of certiorari and a bond” on the WCCA (emphasis added)). The

word “shall” creates a mandatory duty. See Minn. Stat. § 645.44, subd. 16 (2014)

(“ ‘Shall’ is mandatory.”); Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 708 (Minn.

2015) (“The first sentence of the statute, by using the word ‘shall’ to describe the

attendance requirement [before a compensation judge], creates a mandatory duty for

intervenors.”). Subdivision 5 also supports our reading of subdivision 3 because it

contains similar mandatory language in reference to the bond: the bond is “required.”

Minn. Stat. § 176.471, subd. 5. The only reasonable interpretation of the plain and




                                           6
unambiguous directions in this statute is that certiorari review is not available when one

step in the process is omitted.3

       Both this reading of the relevant statutory provisions and our holding are

consistent with the long-established principle that we adhere strictly to the statutory

requirements for appeals from an executive branch agency. “Proceedings [on a writ of

certiorari] are special proceedings within the meaning of our statutes. Our writ of

certiorari is statutory and the statutory provisions must be strictly construed.” State ex

rel. Ryan, 278 Minn. at 301, 154 N.W.2d at 196. We have applied this principle to

appeals by writ of certiorari to the WCCA. See Kearns v. Julette Originals Dress Co.,

267 Minn. 278, 282, 126 N.W.2d 266, 269 (1964) (stating, regarding a failure to timely

file and serve a notice of appeal to the Industrial Commission, that “many statutes

providing for appeals from a lower to a higher administrative agency, or from an agency

to the court, have been strictly construed”); Haimila v. Opsahl Co., 208 Minn. 605, 606,

293 N.W. 599, 600 (1940) (discharging writ of certiorari for failure to timely serve the

writ on respondents); Nelson v. Krause, 201 Minn. 123, 125, 275 N.W. 624, 625 (1937)

(noting the bond required for an appeal in a workers’ compensation proceeding is “fixed

and approved by the [Industrial] commission” and the court has “jurisdiction of the

3
        Relators rely on a separate provision of section 176.471, which provides that the
filing of the “return” from the WCCA administrator, along with payment of the filing fee,
“vests the Supreme Court with jurisdiction of the case.” Minn. Stat. § 176.471, subd. 7.
However, subdivision 6 provides that a prerequisite to the return is the filing of the cost
bond, and subdivision 3 mandates service of the cost bond on the WCCA. Thus,
regardless of the WCCA’s return, certiorari review is not “effected,” meaning it does not
happen, unless the cost bond required by subdivisions 3, 5, and 6 is obtained and timely
served upon the WCCA.


                                            7
compensation proceeding upon the filing with the commission of the bond fixed and

approved by it and the payment to its secretary of [the amount] to be transmitted to the

clerk of this court for his fees”). We have applied the same principles in other contexts

in which our review is invoked through certiorari. Bunday v. Dunbar, 5 Minn. 444, 447

(Gil. 362, 363-364) (1861) (stating that where a statute requires service of a writ of

certiorari within a specified time, “[t]his particularity . . . puts it beyond doubt that the

statute is not merely directory in its requirement that the writ shall be served within ten

days, but makes it an essential step in the removal of the cause.”).

       Even more specifically, we have applied this principle in issuing a series of

orders dismissing certiorari appeals for failure to comply with the requirements of Minn.

Stat. § 176.471. See, e.g., Larson v. Herberger’s (Bon-Ton Stores, Inc.), A13-0647,

Order (Minn. filed June 25, 2013) (failure to serve respondent employer with issued

writ, and failure to serve the WCCA with writ and cost bond); Ek v. Virginia Reg’l Med.

Ctr., A10-1420, Order (Minn. filed Sept. 21, 2010) (“[S]ervice of the writ of certiorari

issued by the Clerk of Appellate Courts and cost bond are statutory requirements for

obtaining review of decisions of the WCCA”); Van Buren v. City of Willmar, A10-0939,

Order (Minn. filed July 17, 2010) (“No affidavit demonstrating timely service of the

issued writ on the WCCA has been filed.”); Malmquist v. Peterson, A08-1026, Order

(Minn. filed June 30, 2008) (same); Hagy v. Morton Bldgs., Inc., A07-1348, Order

(Minn. filed July 16, 2007) (“[T]he writ of certiorari is discharged because it was not

timely served on the” WCCA); Haag v. D.S. Brown Co., A04-2294, Order (Minn. filed

Dec. 27, 2004) (same). Indeed, as we must do in this case, we have discharged the writ


                                              8
and dismissed appeals based solely on the failure to serve the cost bond. See Rivera v.

Cargill Kitchen Solutions, Inc., A15-0625, Order (Minn. filed May 26, 2015)

(dismissing for failure to serve a cost bond on the WCCA); Addington v. Allina Health

Sys., A09-1076, Order (Minn. filed July 15, 2008) (same); Fitzgerald v. DOS Trucking,

Inc., A08-1050, Order (Minn. filed July 11, 2008) (same).

       Therefore, because a bond was not served on the WCCA within the 30-day time

period, our review has not been effected and we have no statutory authority to decide

this certiorari appeal.

                                            III.

       Relators nonetheless contend that their failure to serve a cost bond in a timely

fashion is not material because they paid the filing fee and the WCCA administrator

provided the return to the writ of certiorari when it transferred the record to this court.

Thus, they argue, under subdivision 7, jurisdiction “vested” in the supreme court

notwithstanding the failure to procure and serve the requisite cost bond. They request

that we extend the time for filing the cost bond under subdivision 2, which allows us to

“extend the time for filing any other paper which this chapter requires to be filed . . . .”

Minn. Stat. § 176.471, subd. 2.

       We decline relators’ request to cobble together portions of subdivisions 2 and 7,

and thereby excuse relators’ delay, for two reasons. First, relators’ reading flies in the

face of the plain, unambiguous, and mandatory, time-limited commands of subdivisions

3, 5, and 6. Second, relators misread subdivision 2, which provides only a limited

extension opportunity—specifically, to file any other papers. Nothing allows us to


                                             9
extend the time to accomplish the act required by subdivision 3, which is to serve the

bond on the WCCA. Further, the extension permitted by subdivision 2 distinguishes

between what must be filed within the 30-day period, and “other papers.” After 30 days,

our authority to extend the time is clearly limited to “other papers”—that is, papers other

than those that must be filed within 30 days under subdivision 2. And as noted earlier,

subdivision 3 makes clear that this authority to extend does not include the cost bond.

       Next, relators argue that they were denied an opportunity to cure their failure to

file the cost bond. They cite no authority for the proposition that they had any legal or

equitable entitlement to notice from the WCCA or the clerk of the appellate courts so

that they could timely cure their own filing deficiency, and we have found none.

       Relators next argue that there has been no prejudice to Dennis because the

protection provided by a cost bond—to guarantee that taxable costs on appeal are

paid—does not become “ripe” until the appeal is resolved. But the issue here is not

ripeness or prejudice; it is whether relators have complied with a mandatory statutory

duty and thereby effected the certiorari review they seek. Whether a cost bond should

be necessary to effect certiorari review of a decision by an executive branch agency or

court, and, if so, under what circumstances and by what deadlines, are matters of policy

for the Legislature, not us, to decide. See Schuette v. City of Hutchinson, 843 N.W.2d

233, 238-39 (Minn. 2014) (reasoning that policy determinations in the Workers’

Compensation Act are left to the Legislature); Dukowitz v. Hannon Sec. Servs., 841

N.W.2d 147, 151 (Minn. 2014) (noting that it is for the Legislature to determine whether

considerations of public policy justify a change in the law).


                                             10
       Finally, relators argue that Dennis waived the cost-bond deficiency by not

objecting or moving to dismiss the appeal. Relators rely on Riley v. Mitchell, 38

Minn. 9, 35 N.W. 472 (1887), to argue that a statutory bond requirement is a

technicality to be excused or waived without affecting this court’s jurisdiction. Id. at

13, 35 N.W. at 473 (stating that a “defect in the appeal-bond does not go to the

jurisdiction, but may be waived” and rejecting the proposition that a bond irregularity

“goes to the jurisdiction of the court over the subject matter”).

       But Riley is not a case that arose under the workers’ compensation statute. And,

as we recognized in Riley, “a different rule might obtain” where a statute “makes the right

of the appellate tribunal . . . dependent upon the doing of certain acts as an essential

prerequisite.” Id. Based on the plain language of Minn. Stat. § 176.471, reading together

subdivisions 1, 2, 3, 5, 6, and 7, and given that the cost bond requirement is a statutory

prerequisite for this court to exercise certiorari review over a decision by an executive

agency, we cannot excuse relators’ deficiency.

       Nor can we hold that Dennis waived the issue.            Waiver is the intentional

relinquishment of a known right. In re Civil Commitment of Giem, 742 N.W.2d 422, 432

(Minn. 2007); Carlson v. Doran, 252 Minn. 449, 456, 90 N.W.2d 323, 328 (1958).

Waiver “is the expression of an intention not to insist on what the law affords.” Carlson,

252 Minn. at 456, 90 N.W.2d at 328. Here, the issue of the lack of a cost bond was

identified by this court and briefing was ordered. There is no indication in the record that

Dennis knew of relators’ filing deficiency or intentionally relinquished the right to insist




                                            11
that the statute be followed. Indeed, the record suggests that both relators and Dennis

apprehended relators’ deficiency only when we ordered briefing.

       For all of these reasons, the writ of certiorari is discharged and the appeal is

dismissed.



       HUDSON, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




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