author: LARSON, Justice. WIGGINS, Justice

text:
    Laura J. PERKINS by David M. Perkins, Her Parent and Next Friend, Appellant, v. DALLAS CENTER-GRIMES COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 05-1075.
    Supreme Court of Iowa.
    Feb. 9, 2007.

      Randy V. Hefner and Matthew J. Hemphill of Hefner & Bergkamp, P.C., Adel, for appellant.
    Jason T. Madden and Karin A. Stramel of Bradshaw, Fowler, Proctor & Fair-grave, P.C., Des Moines, for appellee.
   LARSON, Justice.

Laura Perkins was injured in an accident at a Dallas Center-Grimes school. Her father, David Perkins, sued the school district on her behalf. The district court granted the defendant’s motion for summary judgment on statute-of-limitation grounds, and the court of appeals affirmed. We affirm the decision of the court of appeals and the judgment of the district court.

I.Facts and Prior Proceedings.

On February 27, 2001, Laura Perkins was participating in a school event when she injured her hand and wrist by putting them through a glass door at the school. On April 19, 2002, an attorney representing Perkins sent a letter to the school’s insurance adjuster notifying him that the attorney had been retained by Perkins to pursue her claim for injuries sustained on the school’s premises. The letter requested that the adjuster contact the attorney to discuss resolution of the claim.

Perkins filed suit on August 12, 2004, against the school district, alleging negligence for failure to install safety glass in the door and failure to inspect it. The school moved for summary judgment on the ground that Iowa Code section 670.5 (2003) barred the claim as untimely. The district court granted summary judgment, concluding that Perkins did not comply with the requirements of section 670.5 regarding timely notice of the injury and bringing the lawsuit within the time provided. Further, the district court ruled that the tolling provision for minors in Iowa Code section 614.8 did not apply to claims brought under chapter 670.

II. Standard of Review.

Review of a ruling on a motion for summary judgment is for correction of errors at law. Iowa R.App. P. 6.4; Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 840-41 (Iowa 2005). Summary judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). When the facts are undisputed and the only dispute concerns the legal consequences flowing from those facts, the court must determine whether the district court correctly applied the law. City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996). The facts of this case are not in dispute.

III. Discussion.

The school district is a municipal defendant, as defined by Iowa Code section 670.1(2), a part of our Municipal Tort Claims Act. A municipality under chapter 670 is only liable in tort as provided by that chapter. See Iowa Code § 670.2; City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 18 (Iowa 2000) (“Suits against the government may be maintained only to the extent immunity has been expressly waived by the legislature.”). Iowa Code section 670.5 provides a time period within which a plaintiff must file notice and bring suit against a municipal defendant:

Every person who claims damages from any municipality ... on account of any wrongful death, loss or injury within the scope of section 670.2 or section 670.8 or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded.... No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by the injury from giving such notice.

Iowa Code § 670.5 (transferred from Iowa Code § 613A.5 by the code editor for Code 1993).

We have done surgery twice on section 670.5 and its predecessor, section 613A.5. In Harryman v. Hayles, 257 N.W.2d 631 (Iowa 1977), we held that section 613A.5’s requirement that an incapacitated plaintiff must sue within ninety days of the injury was unconstitutional as a denial of equal protection. We held that such a person should have sixty days following termination of the incapacity to bring the action. Harryman, 257 N.W.2d at 635. In Harryman we were careful to only excise that part of the statute that limited an incapacitated plaintiffs ability to bring suit; the rest of the statute was left intact. The reason for striking only part of the statute was that,

[i]f it appears the legislature would probably have enacted the statute even if the objectionable part had been omitted and if it appears the statute can still accomplish the principal legislative purpose, the remaining valid part is said to be severable from the invalid. In such cases our obligation is to save as much of the statute as possible, eliminating only that which is necessary to make it constitutionally sound.
Applying those principles to this case, we hold § 613A.5 is a valid and enforceable statute except for the words “not to exceed 90 days.” Those words are stricken. The statute with this modification is valid and enforceable.
We now hold a person incapacitated as provided in § 613A.5 has 60 days following the termination of his incapacity to give the statutory notice of injury.

Id. at 635.

We voided another part of the statute in Miller v. Boone County Hospital, 394 N.W.2d 776 (Iowa 1986), holding the statute’s requirement that a plaintiff commence an action within six months, after injury unless notice is provided to the municipality within sixty days was an unconstitutional violation of the equal protection provisions of the Iowa and United States Constitutions. Miller, 394 N.W.2d at 780. We held that the loss of a cause of action because of “[flailure to commence an action within six months unless a notice is given within 60 days arbitrarily bars victims of governmental torts while victims of private torts suffer no- such bar.” Id.

Unfortunately, Miller was unclear whether section 670.5 was to be held unconstitutional in its entirety or merely the provision requiring filing an action within six months if notice is not given within sixty days. The plaintiff in this case argues that “Miller .., struck down section 670.5 in its entirety.” The plaintiff relies on language that, if taken in isolation from the rest of the Miller holding, might suggest a broader holding than was actually intended. We said in Miller that, “because section 613A.5 is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A.” 394 N.W.2d at 781.

Any doubt regarding the breadth of our holding in Miller, however, was cleared up in Clark v. Miller, 503 N.W.2d 422 (Iowa 1993). In Clark we held that only the statute’s requirement of filing suit in six months or giving notice within sixty days had been stricken. 503 N.W.2d at 425. We relied on this rationale:

Severance of unconstitutional provisions from constitutional portions of a statute is appropriate if it does not substantially impair legislative purpose, the enactment remains capable of fulfilling the apparent legislative intent, and the remaining portion of the enactment can be given effect without the invalid provision ....
We find the provisions of section 613A.5 can be severed to exclude the unconstitutional portion of the statute while retaining the remaining portion.

Id. at 425 (citation omitted). We held that the portion of section 670.5 remaining after excising the requirement for suit in six months or notice within sixty days was valid. Thus, the time limitation for filing suit under chapter 670, we said, was “two years after timely notice of the claim has been given-” Id. at 425. We specifically rejected the argument the plaintiff makes in this case — that section 670.5 is void in its entirety. The two-year limitation from notice of the claim is still valid. In this case, the plaintiff gave notice of the injury on April 19, 2002, and filed suit on August 12, 2004. This was beyond the two-year limitation of section 670.5 and therefore is barred.

The plaintiff has an alternative argument. Perkins was a minor at the time of the accident. Our general statute of limitations, in section 614.8(2), provides this with respect to claims by minors:

[T]he [time limits] for actions in this chapter, except those brought for penalties and forfeitures, are extended in favor of minors, so that they shall have one year from and after attainment of majority within which to commence an action.

Here, the plaintiff contends she is entitled to the benefit of section 614.8(2) because of language in Miller that, because the sixty-day notice requirement was invalid, “Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter 613A.” Miller, 394 N.W.2d at 781. She argues that, by incorporating chapter 614, Miller intended to suggest that the tolling provision of section 614.8(2) would be incorporated as well.

However, nothing in Miller or any of our other cases has indicated that the tolling provision was intended to be read into section 670.5. In Conner v. Fettkether, 294 N.W.2d 61, 63 (Iowa 1980), we said the tolling provision of section 614.8 is “an extension, not a limitation,” so Miller’s reference to the limitation provisions of chapter 614 would necessarily exclude section 614.8(2). Moreover, we held in Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989), that

the tolling provisions of section 614.8 do not apply to statutes of limitation outside of chapter 614. Section 614.8 states that it applies to the “times limited for actions herein,” and is, therefore, limited by its own language to chapter 614....
A review of the statutes of limitation located outside of chapter 614 demonstrates that the legislature will make specific provisions for tolling when it intends to do so.

In Harden we gave examples in which the legislature had incorporated tolling provisions into statutes outside chapter 614. Id.

The Iowa legislature has never indicated any intent to incorporate a tolling provision in chapter 670, and we decline to do so by relying on the broad language of Miller. Miller did not even involve a claim by a minor. See Schultze v. Landmark Hotel Corp., 463 N.W.2d 47, 49 (Iowa 1990) (“Ordinarily, we may not, under the guise of judicial construction, add modifying words to the statute or change its terms.”); 2A Norman J. Singer, Statutes and Statutory Construction § 47.38, at 395 (2000 rev.) (“In construing a statute, it is always safer not to add to or subtract from the language of a statute unless imperatively required to make it a rational statute.”).

In summary, we hold that Miller did not invalidate section 670.5 in any respect except its requirement for the sixty-day notice. The two-year limitation in that statute remains intact. As we said in Clark, the two-year limitation to bring suit begins with “timely” notice of the claim. Clark, 503 N.W.2d at 425. “Timely” notice, we believe, means notice within a reasonable time after the injury. Here, the defendant argues that the plaintiffs notice of injury (a little over a year after the injury) was not timely. However, we need not resolve that issue because, in any event, more than two years had elapsed between the notice and the filing of the suit. The suit was therefore not timely under section 670.5. Further, the plaintiffs case is not rendered timely by the tolling provision of section 614.8(2). We affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except WIGGINS, J., who dissents, and HECHT and APPEL, JJ., who take no part.

WIGGINS, Justice

(dissenting).

I’dissent. Under today’s ruling we create two separate rules governing the statute of limitations for claims against governmental entities. The first rule applies when a party fails to give notice to a governmental entity within sixty days of the wrongful death or loss of injury. In this situation Iowa Code chapter 614 is the applicable statute of limitations. Miller v. Boone County Hosp., 394 N.W.2d 776, 781 (Iowa 1986). Chapter 614 extends the limitations period for minors “so that they shall have one year from and after attainment of majority within which to commence an action.” Iowa Code § 614.8(2).

The second rule applies when a party gives notice to a governmental entity within sixty days of the wrongful death or loss of injury. Under today’s decision the statute of limitations period ends two years after notice is given and section 614.8(2) will not extend the limitations period.

Applying two different sets of rules to claims against governmental entities makes no sense to me. Although I agree with the majority that we have done surgery twice on Iowa Code section 670.5, I do not believe section 670.5 survived the second surgery.

In Miller we said: “because section [670.5] is unconstitutional, we hold that Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter [670].” Miller, 394 N.W.2d at 781. To me that means we held the entire statute unconstitutional. A review of Miller confirms my understanding.

In Miller the district court dismissed the plaintiffs’ claim for failure to give the defendant, a governmental entity, notice of their claim under section 670.5. Id. at 777. On appeal the plaintiffs alleged the notice requirements of section 670.5 violated equal protection. Id. In our equal protection analysis we focused on whether a rational basis existed to require a sixty-day notice in tort claims against a governmental entity when no such notice was required for other tort claims. Id. at 778-79.

We noted the sixty-day notice requirement did not protect governmental entities from stale claims “because plaintiffs bear the burden to prove negligence, any difficulty in proof in cases arising after sixty days would beset them as well as defendants.” Id. at 779. We also noted the sixty-day notice did not promote early settlement of claims because “[t]he extent of a person’s injuries is often unknown for months, and settlement is unlikely to occur under such circumstances.” Id. at 780. Finally, we stated the sixty-day notice requirement did not lead to the early repair of defective conditions. Id.

We then held there was no rational basis justifying the legislature’s requirement that a person with a tort claim against a governmental entity give a sixty-day notice as a condition of commencing a claim when the legislature did not require a sixty-day notice as a condition of commencing a claim against a nongovernmental entity. Id. at 780-81. As a consequence of holding the sixty-day notice requirement violated equal protection, we held the six-month limitation was also unconstitutional because to allow the six-month limitation to bar the plaintiffs’ cause of action would give effect to the sixty-day notice requirement of section 670.5. Id. at 780. Accordingly, we meant what we said in Miller, “section [670.5] is unconstitutional, [and] Iowa Code chapter 614 is the applicable statute of limitations for all actions arising under chapter [670].” Id. at 781.

Seven years later this court without any analysis or explanation found a rational relationship to a legitimate government interest existed between the sixty-day notice and the commencement of a tort claim against a governmental entity. Clark v. Miller, 503 N.W.2d 422, 425 (Iowa 1993). There we stated:

Allowing the statute of limitations to be extended so as to permit a filing of an action within two years after timely notice of the claim has been given does not violate equal protection guarantees. To allow a person to commence a tort action against a unit of local government within two years after giving timely notice is not patently arbitrary. Such a provision bears a rational relationship to a legitimate governmental interest. The objective of such an extension is not to bar stale claims, but to encourage prompt reporting of claims. We find the remaining portion of section [670.5] fulfills an apparent legislative intent. Similar statutory authority extending the time to begin a suit is provided in the Iowa Tort Claims Act..

Id. (emphasis added).

Miller and Clark cannot be reconciled. In Miller the plaintiffs did not give notice. There we held the sixty-day notice was not rationally related to a legitimate government interest and applied the statute of limitations found in chapter 614. In Clark the plaintiff gave a sixty-day notice. There we held the sixty-day notice was rationally related to a legitimate government interest and applied the limitation period in section 670.5.

The analysis in Miller concentrated on the sixty-day notice requirement and held the sixty-day notice requirement under section 670.5 violated equal protection. Miller, 394 N.W.2d at 780-81. Once we found the sixty-day notice provision of section 670.5 violated equal protection, we found the entire statute unconstitutional. Id. at 781. Clark was wrong to hold otherwise. Miller was correct when it held the statute of limitations found in chapter 614 is applicable to claims under chapter 670. I can see no reason to depart from the holding in Miller. Accordingly, I would overrule Clark and apply the statute of limitations contained in chapter 614 in this case.

Normally, when a plaintiffs claim is based on injury to the person, a two-year statute of limitations is applicable. Iowa Code § 614.1(2). However, at the time of the accident, Perkins was a minor. A minor’s statute of limitations is extended “so that they shall have one year from and after attainment of majority within which to commence an action.” Id. § 614.8(2). Perkins reached her majority on August 7, 2006. Her parents filed this suit on her behalf on August 12, 2004, well within the time limits of the extended limitations period. Accordingly, I would reverse the judgment of the district court and allow the case to proceed to trial.

      . We note parenthetically that section 670.5 has not been amended to reflect the holdings in our cases of Harryman (decided in 1977) and Miller (decided in 1986). These cases voided significant portions of the statute as it now exists. As a result, a researcher would be seriously misled by relying on the statute in its present form. We respectfully urge the legislature to examine the statute and clarify its present status in view of our rulings.

      . Iowa Code section 670.5 was formerly number as 613A.5. In this dissent all references to chapter 613A and section 613A.5 will be referred to as chapter 670 and section 670.5, respectively.


source: Caselaw Access Project

author: MILLER, J.

license: Public Domain

text:
    Douglas Scott POPEJOY, Applicant-Appellee, v. STATE of Iowa, Respondent-Appellant.
    No. 06-0102.
    Court of Appeals of Iowa.
    Oct. 25, 2006.

      Thomas J. Miller, Attorney General, William A. Hill, Assistant Attorney General, and Harold L. Denton, County Attorney, for appellant.
    Patrick E. Ingram of Mears Law Office, Iowa City, for appellee.
    Considered by YOGEL, P.J., and MILLER and EISENHAUER, JJ.
   MILLER, J.

The State of Iowa appeals the district court’s grant of Douglas Scott Popejoy’s application for postconviction relief, contending the court’s interpretation of the language and intent of Iowa Code section 709.8 (2001) was incorrect. We reverse.

Popejoy was sentenced on April 25, 2001, to an indeterminate prison term of no more than ten years for neglect of a dependent person, in violation of Iowa Code section 726.3, and two terms of no more than five years for lascivious acts with a child, in violation of section 709.8(1). The sentencing order did not make the sentences consecutive, so they were concurrent. The sentencing court added language required by section 709.8, which provides in part, “A person who violates a provision of this section and who is sentenced to a term of confinement shall also be sentenced to an additional term of parole or work release not to exceed two years.”

Popejoy discharged the two lascivious act sentences on July 6, 2003, and then he discharged the ten-year sentence for neglect of a dependent person on October 13, 2005. At the expiration of that ten-year sentence Popejoy was transferred to a work release facility.

Popejoy filed an application for postcon-viction relief on September 23, 2005, contending he could not be kept in the work release facility because of other parts of section 709.8. They provide, in part, that the additional term of parole or work release “shall commence immediately upon the expiration of the preceding sentence,” and “shall be consecutive to the original term of confinement.” Popejoy asserted in his postconviction application these phrases mean that any such period of restraint or supervision must begin immediately upon the expiration of the sentence for the crime which required imposition of the additional term of supervision. He argued that was the lascivious acts sentences which expired on July 6, 2003. He argued that because he was still confined in prison for more than two years after the expiration of the lascivious acts sentences he had met the requirements of section 709.8 while serving the remainder of his sentence for neglect of a dependent person. He concluded he thus could not be placed in a work release facility for an additional two years in October 2005.

A hearing was held on Popejoy’s post-conviction application. The district court granted postconviction relief, finding the additional two-year period of parole or work release supervision required by section 709.8 had expired while Popejoy was serving the concurrent, longer sentence for neglect of a dependent person. The court further found that Popejoy was in fact fully supervised for an additional two years after the expiration of the sex-related crime, as he remained in prison during that entire time.

The State appeals the district court’s grant of Popejoy’s postconviction application, contending the court’s interpretation of the language and intent of section 709.8 is incorrect. The fighting issue is whether an additional two-year term of parole or work release pursuant to section 709.8, here stemming from Pope-joy’s convictions for lascivious acts with a child, can be discharged while the defendant remains in prison on the longer portion of a sentence, here for neglect of a dependent person.

We review the trial court’s construction of a statute for correction of errors at law. State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003); In re Detention of Swanson, 668 N.W.2d 570, 574-75 (Iowa 2003).

In interpreting ... statutes, our primary goal is to give effect to the intent of the legislature. That intent is gleaned from the language of the statute as a whole, not from a particular part only. Because we presume the legislature intends a just and reasonable result, we interpret statutes to avoid impractical or absurd results.

In re Detention of Betsworth, 711 N.W.2d 280, 283 (Iowa 2006) (internal quotations and citations omitted).

The polestar of statutory interpretation is the intent of the legislature. We seek to ascertain and effectuate the true legislative intent. We must not only examine the language of the statute, but also its underlying purpose and policies, as well as the consequences stemming from different interpretations. In doing so, we must construe the statute in its entirety.

State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000) (citations omitted); see also Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000) (“In interpreting the statute, our ultimate goal is to ascertain and give effect to the intent of the legislature. We look to both the language and the purpose behind the statute.” (Citations omitted.)). In addition, “although criminal statutes are to be strictly construed in favor of the accused, ‘they must be construed reasonably and in such a way as to not defeat their plain purpose.’ ” State v. Hagedorn, 679 N.W.2d 666, 669 (Iowa 2004) (quoting State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995)).

Our supreme court has frequently stated that we do not resort to the rules of construction when the terms of the statute are unambiguous. Teamsters Local Union No. 421 v. City of Dubuque, 706 N.W.2d 709, 714 n. 2 (Iowa 2005). “We do not search for meaning beyond the express terms of a statute when a statute is plain and its meaning is clear.” Cubit v. Mahaska County, 677 N.W.2d 777, 781-82 (Iowa 2004) (quoting In re Name Change of Reindl, 671 N.W.2d 466, 469 (Iowa 2003)). However, when statutory language is ambiguous, the manifest intent of the legislature is sought and will prevail over the literal import of the words used. State Pub. Defender v. Iowa Dist. Court for Black Hawk County 633 N.W.2d 280, 283 (Iowa 2001). “[T]he manifest intent of our legislature prevails over the literal import of the words used.” State v. Anderson, 636 N.W.2d 26, 35 (Iowa 2001).

As relevant to Popejoy’s application for postconviction relief and to this appeal, section 709.8 provides:

A person who violates a provision of this section and who is sentenced to a term of confinement shall also be sentenced to an additional term of parole or work release not to exceed two years. The board of parole shall determine whether the person should be released on parole or placed in a work release program. The sentence of an additional term of parole or work release supervision shall commence immediately upon the expiration of the preceding sentence and shall be under the terms and conditions as set out in chapter 906. Violations of parole or work release shall be subject to the procedures set out in chapter 905 [“Community-Based Correctional Program”] or 908 [“Violations of Parole or Probation”] or rules adopted under those chapters. The sentence of an additional term of parole or work release shall be consecutive to the original term of confinement.

Iowa Code § 709.8. (Emphasis added). In ruling on Popejoy’s application the district court concluded the language first emphasized above is unambiguous and requires that the additional term of parole or work release supervision commence “immediately upon the expiration of the term to which it is attached,” meaning the term for the lascivious acts convictions. We respectfully disagree with the court’s conclusion and resulting judgment.

We find the statute in question to be not entirely free from ambiguity. It not only requires that the additional two-year term “commence immediately upon the expiration of the preceding sentence,” but also requires that the term “be consecutive to the original term of confinement.” It does not expressly address the situation of multiple, concurrent sentences. The phrase “original term of confinement” is not defined. The statute does not make clear whether that phrase is limited to and applies only to the term served for the crime or crimes which required the additional term of parole or work release supervision, or includes the full term served for concurrent sentences simultaneously imposed. We therefore must attempt, utilizing the rules of construction discussed above, to determine the legislature’s manifest intent in adopting the provision in question.

We agree with the State that the purpose of the statutory provision, and thus the manifest intent of the legislature, is to provide a controlled, gradual, supervised release into the community for persons who have been convicted of and confined for lascivious acts with a child. See Iowa Code § 709.8 (providing that the additional term “shall be under the terms and conditions as set out in Chapter 906”); id. § 906.1 (providing that “parole ... is subject to supervision by the district department of correctional services,” and that “work release is ... pursuant to sections 904.901 through 904.909”); and see id. §§ 904.901-.909 (directing the establishment by the Iowa Department of Corrections of a work release program and establishing terms and conditions for work release). This intent and purpose cannot be achieved if the statute in question is construed to allow a person convicted of and confined for lascivious acts with a child to serve and discharge the two-year additional term while fully confined serving a prison sentence.

We conclude that as applied to cases involving concurrent sentences the phrase “the original term of confinement” means the entire term for which a person is sentenced to prison, including not only any sentence(s) for lascivious acts with a child but also any unrelated concurrent sentence(s). We further conclude the legislature’s intent and purpose in directing that the additional two-year term “shall commence immediately upon the expiration of the preceding sentence” is to preclude the additional term being served concurrently with a term of confinement, and that the phrase “preceding sentence” must therefore be construed to include any concurrent sentence(s). We therefore conclude Popejoy’s additional two-year term commenced upon expiration of his sentence on October 13, 2005, and the district court erred in its conclusion to the contrary.

We reverse the judgment of the district court.

REVERSED.


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Scott Edward CANNADY, Appellant.
    No. A05-811.
    Supreme Court of Minnesota.
    Feb. 8, 2007.

      Jeffrey C. Dean, Dean Law Office, Minneapolis, MN, for appellant.
    Lori Swanson, Atty. Gen., Susan Gaert-ner, Ramsey County Atty., Jeanne L. Schleh, Asst. County Atty., St. Paul, MN, for respondent.
   OPINION

PAGE, Justice.

After a court trial in Ramsey County District Court, appellant Scott Edward Cannady was convicted of 23 counts of possessing child pornography in violation of Minn.Stat. § 617.247, subd. 4(a) (2006), based on photographic images found on his computer. Cannady appealed his conviction, arguing that Minn.Stat. § 617.247, subd. 8 (2006), an affirmative defense provision, unconstitutionally shifts the burden of production and persuasion to the defendant on the element of age of the persons depicted in the alleged pornographic images. The court of appeals affirmed Can-nady’s convictions, relying on its 2002 decision in State v. Myrland, which upheld the constitutionality of section 617.247, subdivision 8, on the basis that only the burden of production is shifted to the defendant and not the burden of persuasion. 644 N.W.2d 847, 851 (Minn.App.2002), rev. denied (Minn. Aug. 6, 2002). While we agree with the court of appeals that section 617.247, subdivision 8, shifts the burden of production to criminal defendants, we hold that this shift violates a criminal defendant’s right to due process because it also creates a de facto shift in the burden of persuasion. But we further hold that to the extent the trial court applied section 617.247, subdivision 8, in this case, that error was harmless beyond a reasonable doubt. We therefore affirm Cannady’s convictions.

This appeal arises out of the following events. In December of 2003, St. Paul police executed a search warrant at Can-nady’s home. As a result of the search, police seized and forensically searched the hard drive of Cannady’s computer. Analysis of the computer hard drive revealed what were determined to be a number of photographic images of what was thought to be child pornography. On March 16, 2004, the Ramsey County Attorney’s office charged Cannady with 25 counts of possession of child pornography in violation of section 617.247, subdivision 4(a). Each count involved a separate image of an alleged minor found on the computer and described in detail a sexual act taking place in the image. Before trial, Cannady moved to dismiss the complaint on constitutional grounds, arguing that, among other things, section 617.247, subdivision 8, violates the U.S. and Minnesota Constitutions by shifting the burden of production and persuasion to the defendant on the element of the age of the person depicted in the photographic image alleged to contain child pornography. The state opposed Cannady’s motion, asserting that the court of appeals held the statute constitutional in Myrland. The trial court denied Cannady’s motion.

After the trial court dismissed Canna-dy’s motion, Cannady gave notice of his intent to rely on the affirmative defense in section 617.247, subdivision 8. On September 7, 2004, while expressly preserving his right to appeal the constitutionality of section 617.247, Cannady waived his right to a jury trial and agreed to a court trial. As part of the trial, the parties stipulated to the admission of 16 exhibits into evidence, including the complaint, the police reports, and the photographic images constituting the alleged child pornography. Cannady made clear to the court that, although he stipulated to the police reports and that the police found the photographs on the computer, he was not conceding “the age of the people in the photographs,” but instead was “leaving that for the Court to decide.” Cannady again asserted the affirmative defense found in section 617.457, subdivision 8, and stated that he was “not conceding the element of age, and expects that to be an element proven by the State.” Cannady did not testify or otherwise offer any evidence in his defense.

On September 20, 2004, the trial court issued its findings of fact, conclusions of law, and guilty verdicts on 28 counts and verdicts of not guilty on the remaining two. The court also put its findings and the verdicts on the record. In doing so, the court noted that, although Cannady asserted the statutory affirmative defense, “[t]he burden of proof remained with the State to prove beyond a reasonable doubt that each photograph contained * * * pornography involving a minor.” The court further noted that the state had proved the element of age beyond a reasonable doubt based on the physical depiction of the persons in the photographs and how the photographs were described (e.g., “prel3”). The court made no mention of the effect, if any, of Cannady’s invocation of the affirmative defense.

On appeal to the court of appeals, Can-nady challenged the constitutionality of the affirmative defense in section 617.457, subdivision 8, and the court’s earlier decision in Myrland. State v. Cannady, No. A-05-811, 2006 WL 997782 *1, *3 (Minn.App.2006). Relying on Myrland, the court of appeals upheld subdivision 8’s constitutionality and affirmed Cannady’s convictions. Cannady now asks us to overrule Myrland and find section 8 unconstitutional.

I.

Statutes are presumed constitutional, and we exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). Constitutional challenges are questions of law, which we review de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).

Section 617.247, subdivision 4, makes possession of child pornography a felony: “A person who possesses a pornographic work or a computer disk or computer * * * containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony.” The definition of “pornographic work” is as follows:

(f) “Pornographic work” means:
(1) an original or reproduction of a picture, film, photograph, negative, slide, videotape, videodisc, or drawing of a sexual performance involving a minor; or
(2) any visual depiction, including any photograph, film, video, picture, drawing, negative, slide, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means that:
(i) uses a minor to depict actual or simulated sexual conduct;
(ii) has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct; or
(iii) is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexual conduct.
For the purposes of this paragraph, an identifiable minor is a person who was a minor at the time the depiction was created or altered, whose image is used to create the visual depiction.

Minn.Stat. § 617.246, subd. 1(f) (2006) (emphasis added). In all cases except under section 617.246, subdivision l(f)(2)(iii), the state must prove, as an essential element of its case, that the person or persons in the pornographic work are minors.

Section 617.247, subdivision 8, provides that, “It shall be an affirmative defense to a charge of violating this section that the pornographic work was produced using only persons who were 18 years or older.” (Emphasis added.) Cannady argues that the statute’s language is plain and leaves no discretion regarding whether age is an affirmative defense because it uses the word “shall,” which is mandatory. Minn. Stat. § 645.44, subd. 16 (2004). Thus, he concludes that the statute violates a defendant’s right to due process because it requires the defendant to affirmatively disprove one of the essential elements of the crime, specifically that the persons in the pictures are minors. In response, the state argues that, despite the language of the statute, subdivision 8 is “merely advisory” because the legislature “cannot shift any burden of proving age, an element of the offense, to the defense.”

In Minnesota, defendants bear the burden of production when asserting an “affirmative defense.” State v. Auchampach, 540 N.W.2d 808, 816-17 n. 7 (Minn.1995). In certain situations, a defendant may also be required to bear the burden of persuasion. See id. (explaining our past treatment of the term “affirmative defense”). In discussing our past treatment of the term “affirmative defense,” we have noted that the legislature is aware of these definitions and has “used affirmative defense to require the defendant to bear not only the burden of production but also the burden of persuasion.” Id. Further, we assume that when the legislature uses a term of art — as it did in subdivision 8 with “affirmative defense”— it intends to use the accepted definition of that term of art. Minn. & Pac. R.R. Co. v. Sibley, 2 Minn. 13, 19 (2 Gil. 1) (1858) (liWhen terms of art or peculiar phrases are used, it must be supposed they are used in the sense as understood by persons familiar and acquainted with such terms.”).

Given the plain language of subdivision 8, including the legislature’s use of the term of art “affirmative defense,” we conclude that the legislature intended subdivision 8 to be, and it in fact is, an affirmative defense.

But the legislature did not indicate in subdivision 8 whether the affirmative defense shifts the burden of production or the burden of persuasion on the element of age to the defendant. The court of appeals in Myrland concluded that if the affirmative defense shifted the burden of production, it would be constitutional, but if it shifted the burden of persuasion, it would be unconstitutional. 644 N.W.2d at 851. The court of appeals held that the affirmative defense could be construed as “merely requiring] respondents to make a prima facie showing that the age of the persons involved is a disputed issue. As such, the state is never freed of its burden to prove the age of the persons involved and the charges will be dismissed if it fails to meet that burden.” Id. (internal footnote omitted).

But the Myrland court did not consider what would happen if a defendant fails to make out a prima facie case on the element of age, which in this case is an essential element of the crime. It is well-established law that a defendant’s failure to meet his or her burden of production on a defense prohibits the assertion of that defense. State v. Yang, 644 N.W.2d 808, 819 (Minn.2002); State v. Charlton, 338 N.W.2d 26, 30-31 (Minn.1983). By placing the burden of production of an essential element of the offense on the defendant, section 617.247, subdivision 8, creates a de facto shift in the burden of persuasion because a defendant’s failure to meet the burden of production on the issue of age would prevent the issue from ever reaching the jury. “It is well settled that due process ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” State v. Hage, 595 N.W.2d 200, 204 (Minn.1999) (quoting Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). As a result, “[d]ue process does not permit the state to place on a defendant the burden of disproving an element of the crime with which she is charged.” Id. Because the affirmative defense in subdivision 8 creates a de facto shift in the burden of persuasion to the defendant on the essential element of age, we hold that it is unconstitutional.

II.

When we hold a statute to be unconstitutional, we invalidate only as much of the law as is unconstitutional. Minn.Stat. § 645.20 (2004); State v. Shattuck, 704 N.W.2d 131, 143 (Minn.2005). To do so, we first look to the intent of the legislature, with our primary goal of creating a remedy that would conform to the legislature’s intent had it known a provision of the law was invalid. Shattuck, 704 N.W.2d at 143. Absent a provision to the contrary, all provisions of a law are severa-ble. Minn.Stat. § 645.20; Shattuck, 704 N.W.2d at 143.

The legislature has stated that its policy and intent, in enacting section 617.247,was “to penalize possession of pornographic work[s] depicting sexual conduct which involve minors or appears to involve minors in order to protect the identity of minors who are victimized by involvement in the pornographic work.” Minn.Stat. § 617.247, subd. 1. The affirmative defense in section 617.247, subdivision 8, is the only portion of section 617.247 that shifts the burden of persuasion to the defendant on the element of age and thus is the only portion of the statute that is unconstitutional. By severing subdivision 8 from the rest of the statute and striking only that portion, we maintain the rest of section 617.247,which criminalizes possession of child pornography as intended by the legislature.

III.

Our determination that section 617.247,subdivision 8, is unconstitutional does not end our inquiry. A deprivation of rights in a criminal trial may be harmless error, even though it is a constitutional violation. Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); accord State ex rel. Kons v. Tahash, 281 Minn. 467, 475 n. 3, 161 N.W.2d 826, 832 n. 3 (1968). Constitutional error is not reversible error when the error is harmless beyond a reasonable doubt. State v. Larson, 389 N.W.2d 872, 875 (Minn.1986). When determining whether the error is harmless, we consider all of the facts and circumstances of the case. State v. Bouwman, 354 N.W.2d 1, 8 (Minn.1984).

The United States Supreme Court has held that the harmless-error analysis applies to errors that occurred during the trial that can be “quantitatively assessed” in the context of the rest of the trial and the evidence presented. Fulminante, 499 U.S. at 307-08, 111 S.Ct. 1246. The Court has rejected the use of the harmless-error test in cases in which “[t]he entire conduct of the trial from beginning to end is obviously affected,” such as in the case of a biased judge, the deprivation of the right to counsel at trial, the exclusion of jurors based on racial bias, the right to self-representation at trial, and the right to a public trial. Id. at 309-10, 111 S.Ct. 1246.

Even in cases in which the Court has invalidated a state statute that was related to the defendant’s trial, the Court has used the harmless-error test. Id. at 307, 111 S.Ct. 1246 (citing Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), as an example). In Hopper, the defendant had been charged with a capital offense in Alabama, which had a statute precluding the consideration of lesser-included offenses in capital cases. 456 U.S. at 607-08, 102 S.Ct. 2049. After the defendant appealed, the Court held in a different case that a sentence of death could not be imposed after a guilty verdict in a capital case if lesser-included offenses had not been included in the jury instructions, provided that the evidence would have supported the lesser-included offense. Id. at 609, 102 S.Ct. 2049. When considering the defendant’s case in Hopper, the Court concluded that even though the preclusion statute was unconstitutional, Hopper would not have been entitled to the instruction because no evidence in his trial would support the lesser-included offense. Id. at 612-13, 102 S.Ct. 2049. The Court concluded that “[t]he preclusion clause did not prejudice respondent in any way, and a new trial is not warranted.” Id. at 613-14, 102 S.Ct. 2049.

So, too, in this case Cannady was not prejudiced by the existence of section 617.247, subdivision 8. Cannady asserted the affirmative defense, without presenting any evidence that the persons depicted in the photographic images were 18 years or older. The record, however, indicates that the trial court not only considered the issue of age, despite Cannady’s failure to meet his burden of production, it required the state to prove beyond a reasonable doubt that the photographs included minors. The court found Cannady guilty on 23' of the 25 counts beyond a reasonable doubt, made a clear record, both in writing and verbally; indicating that the state had met its burden of proving age beyond a reasonable doubt, and explained in some detail exactly how the state had met that burden. The court noted:

I have found the Defendant, Scott Can-nady, not guilty of Counts 6 and 11, as I did not find that the evidence was sufficient to prove beyond a reasonablé doubt that those photographs in Mr. Cannady’s possession constituted child pornography. However, I found, as it relates to photographs 1 through 5, 7 through 10 and then 12 through 25, that the State did prove beyond a reasonable doubt that each of those photographic images constitute child pornography. * * * [Tjhese photographs include a minor, a subject under the age of 18. My conclusion that the State proved that element beyond a reasonable doubt is two-fold: One, the actual photograph, the physical facial depiction of the child, as well as the categorization of the photograph * * * how- the photographs were listed, how they were described, whether it be “prel3,” “prel4,” “little girl,” “preteen Lolita.”

Thus, despite the fact that Cannady asserted the affirmative defense in section 617.247, subdivision 8, the trial court unequivocally required the, state to prove the elements of the offense beyond a reasonable doubt. Cf. State v. Ayers, 303 Minn. 562, 562, 228 N.W.2d 547, 547 (1975) (holding that it was not prejudicial error in a bench trial for the court to state the wrong standard of review — clear and convincing, instead of beyond a reasonable doubt— when “the trial court made it clear that he applied the proof-beyond-a-reasonable-doubt standard in finding defendant guilty”). Additionally, a review of the photographic images from the 23 counts for which Cannady was convicted shows that each of the alleged pornographic works depicts persons so clearly under the age of 18 that there can be no question that the state met its constitutional burden of persuasion without regard to any obligation placed on Cannady by subdivision 8. Thus, we hold that even though section 617.247, subdivision 8, is unconstitutional, any error in Cannady’s bench trial was harmless beyond a reasonable doubt and therefore affirm his conviction.

Affirmed in part, reversed in part.

      . Cannady also argued that section 617.247, subdivision 4, is overbroad, in violation of the First Amendment to the U.S. Constitution. Cannady did not raise that argument on appeal and it is therefore not before us.

      . In this case, as in State v. Fingal, 666 N.W.2d 420, 422 (Minn.App.2003), rev. denied (Minn. Oct. 21, 2003), the trial court determined that section 617.246, subdivision l(f)(2)(iii), was unconstitutional under the First Amendment to the U.S. Constitution, relying in part on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Cannady did not raise the constitutionality of section 617.246, subdivision l(f)(2)(iii), in this appeal. Because the subdivision’s constitutionality is not before us, we express no opinion regarding that issue.


author: GILDEA, Justice.

text:
    Charles J. BENDORF, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. A05-1484.
    Supreme Court of Minnesota.
    Feb. 15, 2007.

      Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, Eagan, MN, for appellant.
    Mike Hatch, Minnesota Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Sean R. McCarthy, Assistant Attorney General, Peter D. Magnuson, Assistant Attorney General, St. Paul, MN, for respondent.
   OPINION

GILDEA, Justice.

Charles J. Bendorf appeals from a district court order sustaining the revocation of his driver’s license. Bendorf argues that because his license was revoked pursuant to a statute that we declared unconstitutional in Fedziuk v. Commissioner of Public Safety, 696 N.W.2d 340 (Minn.2005), he is entitled to rescission of his license revocation as a matter of procedural due process. The court of appeals affirmed the revocation of Bendorfs license. Bendorf v. Comm’r of Pub. Safety, 712 N.W.2d 221 (Minn.App.2006). We granted Bendorfs petition for review and now affirm.

Bendorf was arrested on March 13, 2005, for driving while impaired, in violation of Minn.Stat. § 169A.20 (2006). Bendorf was administered a chemical test to measure alcohol concentration, and he failed the test. Consequently Bendorfs driver’s license was administratively revoked for 90 days, pursuant to Minn.Stat. § 169A.52, subd. 4 (2006). The revocation was effective on March 20. The next day, pursuant to Minn.Stat. § 169A.53 (2006), Bendorf filed a petition for judicial review of the revocation of his driver’s license. The hearing on Bendorfs petition was scheduled for June 23 — 94 days after Ben-dorf petitioned for judicial review.

On March 28, 2005, Bendorf filed a motion for a temporary restraining order seeking the temporary reinstatement of his license. The district court granted Ben-dorfs motion and issued a written order on March 29, temporarily reinstating Ben-dorfs driver’s license “pending the decision of the Minnesota Supreme Court in Fedziuk.” Thus, Bendorf was without driving privileges for nine days.

The judicial hearing on Bendorfs petition was held after we issued our opinion in Fedziuk. The question presented in Fedziuk was whether the 2003 amendments to Minn.Stat. § 169A.53 violated drivers’ procedural due process rights. Before the 2003 amendments, the statute provided that hearings on petitions for judicial review were to be held “at the earliest practicable date, and in any event no later than 60 days” after the petition had been filed. Minn.Stat. § 169A.53, subd. 3 (2002). The 2003 amendments eliminated this language from the statute. Act of May 28, 2003, ch. 2, art. 9, § 13, 2003 Minn. Laws 1st Spec. Sess. 1445, 1451.

In Fedziuk, we held that the 2003 amendments to section 169A.53 were unconstitutional because the statute as amended did not provide a sufficiently prompt and meaningful postrevocation review. Fedziuk, 696 N.W.2d at 346-48. We then revived the version of section 169A.53 that existed immediately prior to the 2003 amendments. Fedziuk, 696 N.W.2d at 349. This version included the requirement that hearings on petitions for judicial review be held “at the earliest practicable date, and in any event no later than 60 days” after the filing of the petition. Minn.Stat. § 169A.53, subd. 3 (2002). After our decision in Fedziuk, the legislature amended the statute, effective August 1, 2005, to restore the language in place before the 2003 amendments. Act of June 2, 2005, ch. 136, art. 18, § 4, 2005 Minn. Laws 901, 1158.

In support of his petition for judicial review, Bendorf argued that his license revocation “must be rescinded because the version of the implied consent law under which [his] license was revoked was found to be unconstitutional” in Fedziuk. The district court concluded that even though the hearing was not held within 60 days of the date Bendorf filed his petition, Bendorf suffered no prejudice because he was granted a stay of his revocation until the hearing. The court issued an order sustaining the revocation of Bendorf s license. Bendorf appealed and the court ordered the commissioner to temporarily reinstate Bendorf s license pending his appeal. The court of appeals affirmed. Bendorf, 712 N.W.2d at 224.

We are asked to address whether Bendorf was deprived of his right to procedural due process under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 7 of the Minnesota Constitution. This constitutional question involves the application of law to undisputed facts. Accordingly, our review is de novo. See Minn. Voyageur Houseboats, Inc. v. Las Vegas Marine Supply, Inc., 708 N.W.2d 521, 524 (Minn.2006); Fedziuk, 696 N.W.2d at 344.

Bendorf offers two arguments to support his claim that his license revocation must be rescinded. First, he argues that because his license was revoked under a version of section 169A.53 that we declared unconstitutional, the revocation must be rescinded. Second, he argues that even if the version of section 169A.53 revived in Fedziuk is construed to apply to this case, his right to due process was violated because the hearing on his petition for judicial review was held more than 60 days after he filed his petition. We address each argument in turn.

I.

Bendorf first argues that his license revocation must be rescinded because his license was revoked under the version of Minn.Stat. § 169A.53 that we struck down in Fedziuk. The commissioner responds by citing Fedziuk’s revival of the version of the statute in effect before the 2003 amendments. See 696 N.W.2d at 349. But Bendorf argues that the revived statute cannot apply to his case because the revival was meant to apply only prospectively — to cases arising after Fed-ziuk — and his case was pending when Fed-ziuk was decided.

Under the general rule, the holding of Fedziuk — reviving the version of section 169A.53 that existed prior to the 2003 amendments — would apply to Bendorfs case because Bendorfs case was pending when Fedziuk was decided. See Kmart Corp. v. County of Stearns, 710 N.W.2d 761, 767 (Minn.2006) (noting that generally our decisions apply retroactively); B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 826 (Minn.2003) (same). We have recognized exceptions to this general rule in only limited circumstances. Kmart, 710 N.W.2d at 767-68.

Bendorf argues that we should make an exception for Fedziuk under the analysis conducted in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The Chevron test requires that three factors be present for a decision to be given prospective-only application. See Kmart, 710 N.W.2d at 768. The first factor requires that the decision establish “a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron, 404 U.S. at 106-07, 92 S.Ct. 349. Even without specific reference to Chevron, we have ruled that our decision announcing a new rule would apply only prospectively. See, e.g., State v. Scales, 518 N.W.2d 587, 593 (Minn.1994) (noting that a new rule requiring that tapes be made of all custodial interrogations “will apply prospectively from the date of the filing of this opinion”). But we made no such ruling in Fedziuk.

We made no such pronouncement in Fedziuk because we did not set forth a new principle of law or overrule prior precedent in that case. Rather, our decision in Fedziuk revived a law that had been substantially the same since 1982 and reaffirmed our prior cases construing that version of the statute. Fedziuk, 696 N.W.2d at 344-45. We noted that “Heddan, Davis and Hamilton recognize that the 1982 changes to the Implied Consent Law that permitted the prehearing revocation of drivers’ licenses were firmly within [constitutional limits].” Id. at 349; see also Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 724 (Minn.1999); Davis v. Comm’r of Pub. Safety, 517 N.W.2d 901, 905 (Minn.1994); Heddan v. Dirkswager, 336 N.W.2d 54, 65 (Minn.1983). And we said there was “no reason to disturb this precedent.” Fedziuk, 696 N.W.2d at 349. Because Fedziuk did not establish a new principle of law or overrule prior precedent, the first factor of the Chevron test is not met. We need not examine whether the other two factors weigh in favor of a purely prospective application of Fedziuk where, as in this case, the first factor is not met. See B.M.B., 664 N.W.2d at 826 (examining only the first factor); Streich v. Am. Family Mut. Ins. Co., 358 N.W.2d 396, 398 (Minn.1984) (same).

Because Fedziuk does not meet the test set forth in Chevron, and because we did not specifically rule in Fedziuk that our holding was to be given prospective-only application, we hold that Fedziuk applies to Bendorfs case.

We said in Fedziuk that “[w]hen a statute is unconstitutional, it is not a law and it is as inoperative as if it had never been enacted.” 696 N.W.2d at 349; see also Minn.Stat. § 645.20 (2006) (“If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid * ⅜ *.”). Based on our ruling in Fedziuk, we conclude that Minn.Stat. § 169A.53 as it existed immediately prior to the 2003 amendments is properly applied to Bendorf and to all other similar cases that arose between August 1, 2003 — the effective date of the 2003 amendments — and August 1, 2005 — the effective date of the 2005 amendments that restored the language that was in place before the 2003 amendments.

II.

Bendorf next argues that his right to procedural due process was violated even if the version of section 169A.53 that existed immediately prior to the 2003 amendments is applicable to his case. Bendorf cites the 60-days language in the statute and suggests that if the statute was unconstitutional without the language, then conducting a hearing more than 60 days after the filing of the petition for judicial review is a violation of due process. Because his hearing was conducted more than 60 days after his petition for judicial review was filed, Bendorf argues his license revocation must be rescinded.

Bendorf infers from Fedziuk that the 60-day time frame is “mandatory” under procedural due process principles and that judicial review hearings therefore always must be held within 60 days. His argument is premised on Szczech v. Commissioner of Public Safety, 343 N.W.2d 305 (Minn.App.1984), and he argues that we overruled Szczech in Fedziuk. In Szczech, the court of appeals cited Heller v. Wolner, 269 N.W.2d 31 (Minn.1978), to support its holding that “[t]he statutory [60-day] time limit [of Minn.Stat. § 169A.53] is directory, not mandatory.” Szczech, 343 N.W.2d at 308-09.

In Fedziuk, we distinguished the language eliminated by the 2003 amendments from the language we labeled “directory” in Heller “because of the due process requirement of promptness involved in [Fed-ziuk].” Fedziuk, 696 N.W.2d at 347 n. 9. We did not, however, discuss, much less overrule, Szczech or hold that the 60-day time frame in Minn.Stat. § 169A.53, subd. 3, is mandatory. Instead, we directed our attention in Fedziuk to a different inquiry: whether the delay caused any prejudice. Fedziuk, 696 N.W.2d at 347 n. 9 (“Because the drivers in Heller kept their licenses while they waited for their hearing, the delay in the hearing did not cause any prejudice to the drivers.”).

The facts of this case likewise do not require us to review that portion of Szczech that held that the 60-day time frame in Minn.Stat. § 169A.53, subd. 3, is directory. This case involves a procedural due process claim whereas the mandatory-directory discussion in Szczech was in the context of statutory interpretation. 343 N.W.2d at 308. In a procedural due process case, the issue is not whether the statutory language is directory or mandatory. The appropriate inquiry is the one we addressed in Fedziuk: what level of prejudice has the driver suffered?

The prejudice inquiry is necessary because the Supreme Court has said so often “as not to require citation” that “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Supreme Court directs us to consider three factors when evaluating the sufficiency of procedural protections: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Wilkinson v. Austin, 545 U.S. 209, 224-25, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). Application of these factors establishes that Bendorfs right to procedural due process was not violated.

There is no question that Bendorf has a private interest “in continued possession and use of the license pending the hearing,” and that that interest was burdened when his license was revoked. See Fedziuk, 696 N.W.2d at 346. We have recognized, however, that “the duration of the revocation” and “the availability of hardship relief’ are relevant to the determination of the impact on the driver’s private interest. Heddan, 336 N.W.2d at 60. In this case, Bendorf availed himself of hardship relief by moving for a stay of his revocation. As a result, Bendorfs license was revoked for only nine days before it was temporarily reinstated.

Regarding the risk of erroneous deprivation, we concluded in Fedziuk that, without the requirement that a judicial review hearing be held “at the earliest practicable date” and given the procedural deficiencies of the alternative administrative review, a prehearing license suspension violated due process. Fedziuk, 696 N.W.2d at 346-47 (citing Barry v. Barchi, 443 U.S. 55, 64-66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (ruling that New York’s interest in assuring the integrity of horse racing entitled the state to impose a suspension pending a prompt judicial hearing, but concluding that the statute at issue did not adequately assure a prompt hearing)). We also noted, however, that in three previous cases, we ruled that the procedural protections in the statute — -the “short duration of the suspension,” the “availability of limited licenses in hardship cases,” and the availability of “prompt postrevocation review” — adequately guarded against the risk of erroneous deprivation, and therefore were sufficient to satisfy due process. Fedziuk, 696 N.W.2d at 345 (citing Heddan, 336 N.W.2d at 60-63; Davis, 517 N.W.2d at 904-05; and Hamilton, 600 N.W.2d at 724). The revival of the statute as it existed immediately prior to the 2003 amendments provides procedural protections to guard against an erroneous deprivation of Bendorfs private interest.

Finally, with respect to the third factor in Mathews, we emphasize again that “drunken drivers pose a severe threat to the health and safety of the citizens of Minnesota.” Heddan, 336 N.W.2d at 63. The state has a compelling interest in highway safety justifying efforts to keep impaired drivers off the road. Id. Furthermore, the state has an interest in maintaining an administrable system for handling cases involving impaired drivers. Allowing courts to stay a driver’s license revocation in the event that a hearing might not be able to be held within the 60-day time frame set forth in Minn.Stat. § 169A.53, subd. 3, promotes that interest.

The flexibility of the procedural due process test of Mathews leaves us then to weigh the impact on Bendorfs private interests against the state’s interests. Ben-dorf was deprived of his driving privileges for only nine days, and he availed himself of relief by obtaining a stay that has allowed him to maintain his driving privileges throughout the process of judicial review. This minimal impact does not outweigh the state’s compelling interest in maintaining an administrable system to keep its highways free from impaired drivers. We hold that the prejudice Bendorf suffered does not rise to the level of a violation of his right to procedural due process. See Jennings v. Mahoney, 404 U.S. 25, 26-27, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971) (concluding that the appellant’s procedural due process rights were not violated when her driver’s license suspension was stayed while the court conducted a hearing at which appellant was given the opportunity to present evidence and cross-examine witnesses); see also Barry, 443 U.S. at 66, 99 S.Ct. 2642 (showing a concern for scenarios in which individuals “would have no opportunity to put the State to its proof until they have suffered the full penalty imposed,” and concluding that “[o]nce suspension has been imposed,” the individual’s interest in a “speedy resolution to the controversy becomes paramount” (emphasis added)).

The result reached here is not meant to indicate that conducting judicial review of a license revocation more than 60 days after the filing of a petition is never a due process violation. But where the stay provision in the statute has been successfully invoked to restore the driver’s privileges and in the absence of a showing of prejudice beyond the short number of days at issue in this case, application of the factors set forth in Mathews, 424 U.S. at 335, 96 S.Ct. 893, compels the conclusion that the driver’s right to procedural due process has not been violated.

Because we conclude that Bendorfs right to procedural due process was not violated in this case, we affirm.

Affirmed.

      . There is no pre-revocation hearing under section 169A.52.

      . The district court found that Bendorfs license was revoked on March 26, 2005. This finding was erroneous. Under Minn.Stat. § 169A.52, subd. 7(c)(2) (2006), Bendorf received a temporary license for seven days. This license expired on March 20, and that is when the revocation became effective, as both parties have acknowledged.

      .Although the district court used the words "temporarily reinstating,” the order was in effect the same as a stay of the revocation. See Minn.Stat. § 169A.53, subd. 2(c) (2006) (stating that a reviewing court may "order a stay of the balance of the revocation * * * if the hearing has not been conducted within 60 days after filing of the petition”). Indeed, in their briefs and at oral argument, the parties treated the temporary reinstatement as the equivalent of a stay.

      . The Fourteenth Amendment provides that "[n]o state shall * * * deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Minnesota Constitution similarly mandates that ”[n]o person shall ⅜ * ⅜ be deprived of life, liberty or property without due process of law.” Minn. Const. art. I, § 7.

      . Chevron has been overruled, at least in part. See, e.g., Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995) ("[Hyde] concedes that Harper [v. Va. Dep’t of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)] overruled Chevron Oil insofar as the case (selectively) permitted the prospective-only application of a new rule of law."). Nevertheless we have continued to apply the Chevron test. See, e.g., Kmart, 710 N.W.2d at 768.

      . The other two factors examine whether retroactive application of the rule will further the rule's purpose or effect and whether retroactive application will produce "substantial inequitable results.” Chevron, 404 U.S. at 106-07, 92 S.Ct. 349.

      . We express no opinion as to whether there might be a due process violation when a driver fails to move for a stay of his revocation or when a driver’s motion for a stay is denied prior to the end of the 60-day period. This case also does not involve any potential prejudice that a driver could face in the event that he or she was arrested a second time for driving while impaired before the judicial review hearing and was subject to enhanced criminal penalties as a result of the first arrest and resulting license revocation.

      . In each of those cases, we concluded that the Implied Consent Law was within the constitutional boundaries set forth in Mackey v. Montrym, 443 U.S. 1, 19, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (considering the constitutionality of a Massachusetts statute and concluding that "the compelling interest in highway safety justifies the [state] in making a summary suspension effective pending the outcome of the prompt postsuspension hearing”). See Fedziuk, 696 N.W.2d at 345.

      . Bendorf argues that he suffered additional prejudice because he had to pay a $55 motion fee in order to obtain the stay. We have weighed this factor in our analysis and it does not change our conclusion.

      . Bendorf advanced arguments concerning the procedures being used in counties other than the one in which his case was processed and he contends that these procedures violate the Due Process Clause and Minn.Stat. § 169A.53, subd. 3, because there is no effort made in these counties to schedule hearings on petitions for judicial review within 60 days. Because these facts are not before us, we do not address them in this case.


author: MINGE, Judge.

text:
    STATE of Minnesota, Respondent, v. Robert John VERDON, Appellant.
    No. A06-335.
    Court of Appeals of Minnesota.
    Feb. 20, 2007.
    Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, and Stephanie Beckman, Meeker County Attorney, Meeker County Courthouse, Litchfield, MN, for respondent.

      Bradford Colbert, Legal Assistance to MN Prisoners, St. Paul, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; TOUSSAINT, Chief Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant contends that the district court erred when it determined that it did not have jurisdiction to correct the Minnesota Offense Code entry on appellant’s criminal judgment and warrant of commitment. We reverse and remand.

FACTS

Appellant Robert Verdón was charged with first-degree felony arson in violation of Minn.Stat. § 609.561, subd. 1 (2002), felony terroristic threats in violation of Minn.Stat. § 609.713, subd. 1 (2002), and felony criminal damage to property in violation of Minn.Stat. § 609.595, subd. 1 (2002). The charges arose out of an apartment-fire incident.

The complaint indicates that officers first noticed the apartment fire when they were attempting to arrest appellant pursuant to a warrant and that during the incident, appellant brandished a firearm and threatened officers. Appellant entered an Alford plea to felony arson. In exchange for the plea, the state agreed to dismiss the remaining charges and to recommend a sentence in accordance with the Minnesota Sentencing Guidelines. During the plea hearing, appellant was neither asked about nor did he admit to possessing a firearm while committing arson. The district court accepted appellant’s Alford plea, sentenced appellant to 88 months, and ordered restitution.

Appellant’s Criminal Judgment and Warrant of Commitment (CJWC) includes the assignment of a Minnesota Offense Code (MOC). The MOC describes the offense by using a series of letters and numbers. Here, appellant was assigned code F132A. The first letter, F, indicates the general type of offense: “Arson/Negligent Fires.” The first number, 1, indicates the specific offense “Arson 1 (Felony).” The second number, 3, indicates the nature of the property damaged and weapon involved, here, “Inhabited-Firearm.” The final number, 2, indicates the type of property, here, “Other Residential.” And the final letter, A, indicates that the amount of damage resulting from the offense was more than $1,000.

After his sentence commenced, appellant filed a motion with the district court, requesting an order that the MOC on the CJWC be corrected by deleting the “firearm” reference. Appellant reasoned that such an order was warranted because (1) the elements of the offense to which he pleaded guilty did not include the use or possession of a firearm; (2) the plea-hearing transcript does not contain an admission from appellant of possession or use of a firearm; and (3) the firearm reference deprives appellant of the benefit of his plea agreement because it adversely affects his eligibility for prison programming.

After a hearing, the district court agreed that appellant did not admit possession of a firearm and that firearm possession is not an element of first-degree arson. But the district court found that neither it nor the district court administrator assigns the MOC, that the prosecuting attorney is responsible for assigning the MOC, and that court staff uses the originally assigned MOC when preparing the CJWC, even if the charge is later amended. The district court concluded that it did not have jurisdiction to modify the MOC and denied appellant’s motion. This appeal followed.

ISSUES

I. Did the district court err in determining that it did not have jurisdiction to modify the MOC?

II. Is the district court order refusing to modify the MOC appealable, and, if so, is appellant’s request for review timely?

ANALYSIS

I.

The fundamental issue is whether the district court properly concluded that it lacks jurisdiction to alter the MOC on appellant’s CJWC. Questions of a district court’s authority and jurisdiction are legal issues subject to de novo review. Pflepsen, 590 N.W.2d at 763.

Minn. R.Crim. P. 27.03, subd. 8, provides that “[cjlerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” Rule 27.03, subd. 9 provides that “[tjhe court at any time may correct a sentence not authorized by law.”

This court has previously considered interpretations of rule 27.03’s civil counterpart, Minn. R. Civ. P. 60.01, for guidance in evaluating clerical errors. See, e.g., State v. Walsh, 456 N.W.2d 442, 443 (Minn.App.1990). See generally Minn.R.Crim. P. 28.01, subd. 2 (“Except as otherwise provided in these rules, the Minnesota Rules of Civil Appellate Procedure to the extent applicable shall govern appellate procedures in [criminal] cases.”). In the civil context, we have defined clerical error as a mistake that “ordinarily is apparent upon the face of the record and capable of being corrected by reference to the record only.” Walsh, 456 N.W.2d at 443 (quotation omitted). A clerical error “cannot reasonably be attributed to the exercise of judicial consideration or discretion.” State v. Pflepsen, 590 N.W.2d 759, 768 n. 4 (Minn.1999).

Here, it is apparent on the record that appellant did not admit that a firearm was involved in the offense, the error on the CJWC can be corrected by reference to the record, and the error cannot be attributed to the exercise of judicial discretion. Therefore, we conclude that the firearm reference in the MOC on appellant’s CJWC constitutes a clerical error. Furthermore, because such mistakes may be corrected “at any time” under Minn. R.Crim. P. 27.03, subd. 8, we conclude that appellant’s motion to correct the error was timely.

The district court concluded that it did “not have the jurisdiction to modify the MOC code designated by the prosecuting attorney.” Judicial staff prepares the CJWC. See Minn. Prosecutor Manual 3-21 to 3-23 (March 2006). The names of the court administrator and the district court judge appear at the end of the form. Id. at 3-22. The CJWC is a court document, and its instructions explain how to complete it. Id. at 3-23 to 3-26. The document instructs court staff to “[ejnter the Minnesota Offense Code (MOC) that describes the offense at the time of sentencing.” Id. at 3-24 (emphasis added). The staff is directed to “the MOC manual for the specific code.” Id. There is no indication that, when assigning an MOC, the staff is to refer to the prosecutor’s complaint or that the prosecutor controls the selection of the code or that the MOC is determined by the offense as charged. Rather, the MOC on the CJWC is based on the “offense at the time of sentencing.” Id. As previously stated, Minn. R.Crim. P. 27.03, subd. 8, provides the district court with authority to correct clerical errors and subd. 9 provides authority to correct sentences. Courts alone have the authority to impose sentences. State v. Olson, 325 N.W.2d 13, 18 (Minn.1982). We conclude that the CJWC and the MOC on that form are incident to sentencing and that the district court had the authority to correct the MOC.

Respondent further contends that the assignment of an MOC for the CJWC is not a part of a sentence, and argues that appellant should pursue his claim through the Department of Corrections (DOC), rather than the district court. We agree that the Commissioner of Corrections, rather than the courts, establishes conditions of incarceration. See State v. Cook, 617 N.W.2d 417, 420-21 (Minn.App.2000) (“[T]he Commissioner of Corrections, not the sentencing court, is responsible for determining the conditions of a prisoner’s incarceration.”), review denied (Minn. Nov. 21, 2000); State v. Burdick, 355 N.W.2d 176, 178 (Minn.App.1984) (“[T]he legislature authorized only the Commissioner of Corrections to regulate the conduct of inmates while incarcerated.... ”).

But here, appellant does not seek the district court’s determination of conditions of his incarceration, rather, appellant seeks amendment of the MOC on the CJWC, which, in turn, the DOC would use to “determine ... visitation policies as well as security and placement issues.... ” Minn. Prosecutor Manual at 4-1. Appellant claims that the DOC’s use of the code influences his eligibility for prison programming. Reversal of the district court’s MOC determination and remand for the district court to correct the MOC does not unduly interfere with the DOC’s regulation of appellant’s conduct while he is incarcerated. Because the DOC does not have any apparent authority to modify the MOC on the CJWC, it would undoubtedly reject any request by appellant to address his complaint that it is erroneous.

II.

Respondent claims that even if there is jurisdiction, the decision of the district court that it lacked jurisdiction is not appealable. Respondent further claims that even if there is jurisdiction and the district court decision is appealable, appellant’s appeal is not timely because it was filed about six months after the original sentencing and more than 60 days after the district court’s order rejecting the motion for correction. We combine our analysis of these two issues.

The defendant may, as a matter of right, appeal a sentence in a felony case. Minn. R.Crim. P. 28.02, subd. 2(3). Matters related to sentencing may be raised in three ways: appealing from the judgment of conviction, appealing the sentence itself, and appealing the denial of a petition for postconviction relief. State v. Thomas, 371 N.W.2d 533, 534-35 (Minn.1985); State v. Scott, 529 N.W.2d 11, 12 (Minn.App.1995), revieiu denied (Minn. Mar. 14, 1995). This is not an appeal from a conviction. An appeal from an order denying postconviction relief must be taken within 60 days after entry of the order. Minn. R.Crim. P. 28.02, subd. 4(3). This court may extend this time by up to 30 days. Id. This would give appellant up to 90 days for a postcon-viction appeal. Time for appeal of the sentence itself is 90 days. Minn. R.Crim. P. 28.05, subd. 1(1). There is no provision for an extension. Scott, 529 N.W.2d at 12. An appeal from a refusal to correct or modify a sentence is taken from the district court order denying the requested relief. See id.; State v. Stutelberg, 435 N.W.2d 632, 634 (Minn.App.1989). Thus, the 90 days for sentencing review com-menees on the date the district court entered its order.

Given the relationship of the MOC and the CJWC to sentencing and the fact that the appeal was filed within 90 days of the district court order, we conclude that the district court’s rejection of appellant’s motion to correct the MOC is appealable and that this appeal is timely.

DECISION

Because the district court has the authority to correct clerical errors and court staff is responsible for entering the MOC in the CJWC, we conclude that the district court erred in determining that it did not have jurisdiction to order such a correction of appellant’s MOC and remand appellant’s motion for further consideration. We further conclude the district court’s order is appealable and that this appeal is timely.

Reversed and remanded.

      . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).