This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-544

 

Barbra JoAnne Jensen, petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

 

Filed April 3, 2007

Reversed

Peterson, Judge

 

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)

 

Lori Swanson, Attorney General, Jeffrey F. Lebowski, Joel A. Watne, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for appellant)

 

 

            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

PETERSON, Judge

            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.

FACTS

            Respondent Barbara JoAnne Jensen was convicted in Wisconsin of operating a motor vehicle while intoxicated on June 6, 2004.  Based on the Wisconsin conviction, appellant Commissioner of Public Safety revoked Jensen’s Minnesota driver’s license for 30 days pursuant to Minn. Stat. § 171.17, subd. 1(a)(9) (2002).  The 30-day period began on June 21, 2005, and Jensen’s driving privileges were reinstated on July 21, 2005. 

            On August 28, 2005, Jensen was arrested in Minnesota for driving while impaired (DWI).  The June 21, 2005 license revocation was used to enhance the DWI charge brought against Jensen.  On October 25, 2005, Jensen filed a petition for a hearing under Minn. Stat. § 171.19 (2004) to determine whether she was subject to license revocation based on the June 6, 2004 Wisconsin conviction.

            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  The district court denied the motion to dismiss, rescinded the June 21, 2005 license revocation, and ordered the commissioner to remove all references to the June 21, 2005 license revocation from Jensen’s driving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.)

            The 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 v. Murray, 648 N.W.2d 664, 670 (Minn. 2002) (subject-matter jurisdiction).  Statutory construction is also a question of law, which this court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). 

            We have found no statutory definition of “withdrawal period,” but the notice that the commissioner sent to Jensen states, “Minnesota driver’s license or privilege to operate a motor vehicle is hereby revoked effective 06-21-05” and “withdrawal of all privileges effective on above date and to continue for 30 days.”  We infer from these statements that Jensen’s withdrawal period expired on July 20, 2005, and her driving privileges were restored on July 21, 2005.  Neither party argues otherwise. 

            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 (Minn. App. 1999) (recognizing distinction between whether court had subject-matter jurisdiction and whether untimeliness prevented court from exercising jurisdiction), aff’d. on other grounds, 612 N.W.2d 862 (Minn. 2000).  Under the plain language of the statute, the district court in the county where Jensen resided was vested with jurisdiction to hear Jensen’s petition.[1]

            However, the statute also requires that a petition “must . . . be filed before expiration of the withdrawal period.”  Minn. Stat. § 171.19.  When used in Minnesota Statutes, “must” is mandatory.  Minn. Stat. § 645.44, subds. 1, 15a (2006).  Therefore, Jensen’s petition was untimely, and the district court should not have exercised its jurisdiction to hear the petition.

2.         The 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 (Minn. App. 2000), and State v. McLellan, 655 N.W.2d 669 (Minn. App. 2003), review denied (Apr. 15, 2003), the district court determined that not allowing Jensen to challenge the June 21, 2005 license revocation is fundamentally unfair and a denial of due process.  The district court determined that

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. 

 

            The district court’s determination reflects a misunderstanding of this court’s decision in Nordvick.  This court did not say that the drivers[2] 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 revocations.  Id. 

            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.

            Reversed.