This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Barbra JoAnne Jensen,
Commissioner of Public Safety,
Filed April 3, 2007
Washington County District Court
File No. C7-05-8101
Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for respondent)
Attorney General, Jeffrey F. Lebowski, Joel A. Watne, Assistant Attorneys
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a district court order granting respondent’s petition for reinstatement of her driver’s license, appellant Commissioner of Public Safety argues that (1) because the petition was not timely filed, the district court lacked jurisdiction to consider the petition; and (2) “due process” does not provide an alternative source of jurisdiction to consider a petition that is barred by the statute of limitations. We reverse.
Respondent Barbara JoAnne Jensen was
On August 28, 2005, Jensen was arrested
The commissioner moved to dismiss Jensen’s petition as untimely. The district court denied the motion to dismiss, rescinded the June 21, 2005 license revocation, and ordered the commissioner to remove all references to the June 21, 2005 license revocation from Jensen’s driving record. This appeal follows.
D E C I S I O N
1. Jensen used the statutory procedure for challenging the revocation of her driver’s license. Under that procedure,
[a]ny person whose driver’s license has been refused, revoked, suspended, canceled, or disqualified by the commissioner, except where the license is revoked or disqualified under section 169A.52 or 171.186, may file a petition for a hearing in the matter in the district court in the county wherein such person shall reside . . . and such court is hereby vested with jurisdiction, and it shall be its duty, to set the matter for hearing upon 15 days’ written notice to the commissioner, and thereupon to take testimony and examine into the facts of the case to determine whether the petitioner is entitled to a license or is subject to revocation, suspension, cancellation, disqualification, or refusal of license and shall render judgment accordingly. The petition for hearing must either be filed within 180 days of the effective date of the order of revocation, suspension, cancellation, disqualification, or refusal to license or be filed before expiration of the withdrawal period, whichever occurs first.
Minn. Stat. § 171.19 (2004) (emphasis added.)
commissioner argues that the district court lacked jurisdiction to consider Jensen’s
petition because Jensen filed the petition after the statutory filing period
had run. Whether a district court has
jurisdiction is a question of law, which this court reviews de novo. See Johnson
We have found no statutory
definition of “withdrawal period,” but the notice that the commissioner sent to
Jensen states, “
It is undisputed that Jensen
filed her petition on October 25, 2005, which was more than three months after
her withdrawal period expired. Therefore,
Jensen did not comply with the statutory timing requirement for filing her
petition. But Jensen’s failure to file
her petition within the period prescribed by the statute does not mean that the
district court lacked jurisdiction to consider the petition. See
Bode v. Minn. Dep’t of Natural Res., 594 N.W.2d 257, 259-60 (
the statute also requires that a petition “must . . . be filed before
expiration of the withdrawal period.”
district court denied the commissioner’s motion to dismiss Jensen’s petition as
untimely. Citing what it perceived to be
an inconsistency between this court’s holdings in Nordvick v. Comm’r of Pub. Safety, 610 N.W.2d 659 (
read together, Nordvick and McLellan preclude the driver’s ability to challenge a revocation based on an unconstitutionally obtained out-of-state DWI conviction and/or license revocation. The driver’s § 171.19 petition will be denied because she lacks standing, pursuant to Nordvick. Then, the vicious cycle continues, because when the driver gains standing to challenge the revocation because it is being used to enhance a subsequent criminal charge, she has lost her right to collaterally challenge the revocation pursuant to McLellan.
district court’s determination reflects a misunderstanding of this court’s
decision in Nordvick. This court did not say that the drivers
in Nordvick did not have standing to
petition for judicial review of their license revocations; this court said that
in the judicial review of their license revocations, the drivers did not have
standing to challenge the constitutionality of the enhancement provision in the
DWI statute because the provision had not been applied against them and until
it is applied against them, “they cannot show any direct and personal harm
resulting from the criminal enhancement provision, and their challenge is
premature.” Nordvick, 610 N.W.2d at 663.
This court also remanded the petition of one of the drivers for a
determination of the merits of the petition, which indicates that this court
believed that the drivers had standing to petition for judicial review of the license
The sole basis for rescinding her June 21, 2005 license revocation that Jensen asserted in her petition for judicial review is that because she was not afforded the right to consult with an attorney prior to testing following her Wisconsin arrest, her Wisconsin conviction was obtained in violation of the constitutional right to consult with an attorney before testing, which is recognized in Minnesota, and the commissioner cannot revoke her driving privileges based on an unconstitutionally obtained foreign conviction.
Unlike the claims in Nordvick that this court determined the drivers did not have standing to assert, Jensen’s claim does not involve any statutory provision that had not been applied to Jensen, and we see no reason why Jensen would not have had standing to assert this claim in a timely petition for judicial review. Because Jensen had an opportunity to assert this claim in a timely petition for judicial review, but failed to do so, it is not fundamentally unfair and a denial of due process to not allow her to assert the claim in an untimely petition.
 There is no allegation that Jensen did not file her petition in the district court in the county where she resided.
 Nordvick involved three drivers because it was a consolidated appeal of three
cases. Nordvick, 610 N.W.2d at 661-62.
In each of the three cases, the driver’s license was revoked after the
driver failed an implied-consent test.