(concurring specially).
I agree with the disposition of this case, but would have preferred to address directly the challenge made to the procedures established for dismissals with prejudice pursuant to the Fourth Judicial District’s Chief Judge’s order of April 10, 1985.
The order does not appear to have been adopted with the formality and consideration required for a special rule of that district and is inconsistent with Fourth Judicial District Special Rule 4.03, because that rule provides only for dismissals without prejudice. Dismissals with prejudice pursuant to the order have been made ministerially by the Clerk of Court, and Rule 4.03 similarly calls for automatic dismissal for failure to file a certificate of readiness or to secure a continuance.
Both the order and the rule are directed at timely prosecution of cases. Neither, however, requires the application of the court’s discretion, as required by Minn.R. Civ.P. 41.02(1):
The court may * * * dismiss an action or claim for failure to prosecute * * *.
(Emphasis added). In analyzing the discretion mandated by Rule 41.02(1), case law has developed criteria for assessing the propriety of a dismissal for failure to prosecute. See, e.g., Bonhiver v. Fugelso, Porter, Simick and Whiteman, Inc., 355 N.W.2d 138 (Minn.1984). These decisions require the application of human judgment to each specific case before ordering dismissal on the merits. By ordering dismissals with prejudice while avoiding the application of discretion in the individual case, the Fourth Judicial District order establishes a procedure contrary to Rule 41.02(1).
The argument is advanced that the order is consistent with the catch-all language of Rule 41.02, which provides for dismissal “for failure * * * to comply with these rules or any order of this court.” The transparent sophistry of this argument is shown by reference in both the order and the rule to the failure timely to file the certificate of readiness (i.e., failure to prosecute) as the practice being remedied. To rely on general language when a specific applies unequivocally is contrary to the most elementary rules of construction.
It is not enough that the court will exercise discretion upon a motion to vacate the dismissal. At that point the burden of proof has shifted to show, after the fact, why the case should not have been dismissed. In view of the nature of the criteria to be applied (existence of prejudice, excuse for the neglect), allocation of the burden of proof is often determinative of the outcome.
Significant due process questions have also been raised as to the order. Because dismissals with prejudice, to be consistent with Minn.R.Civ.P. 41.02, must require the application of discretion, it is difficult justi*850fy notice that is not addressed to specific cases. It is painfully apparent that, had such notice been afforded, this court would not have seen the plethora of appeals based on excusable neglect for various law-office clerical errors. The failure to provide at least for some hearing, even if only by calendar-call, prior to wholesale dismissal of cases is difficult to equate with due process of law, especially in a state that has established a constitutional guarantee of a remedy for all injuries:
Redress of injuries or wrongs. Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.
Minn. Const. Art. 1, § 8.
The trial courts, in striving to attain calendar control, must not short-circuit the right of litigants to a trial on the merits. The people’s respect for the judicial process is not preserved by such mechanisms.