Gould v. Deschutes Cnty.

367 Or. 427

478 P.3d 982

Annunziata GOULD, Petitioner on Review,

v.DESCHUTES COUNTY and Central Land & Cattle Co., LLC, Respondents on Review.

SC S067074

Supreme Court of Oregon, En Banc.

Argued and submitted September 15, 2020.

December 31, 2020

Wendy M. Margolis, Cosgrave Vergeer Kester, LLP Portland, argued the cause and filed the briefs for petitioner on review.

Sara Kobak, Schwabe, Williamson & Wyatt, P.C., argued the cause and filed the brief for respondent Central Land & Cattle Co., on review. Also on the brief were J. Kenneth Katzaroff and Liz Fancher, Law Office of Liz Fancher, Bend. Amy Heverly, Deschutes County Legal Counsel, Bend, filed the brief for respondent Deschutes County.

NAKAMOTO, J.

This companion case to State v. Chapman , 367 Or. 388, ––– P.3d –––– (2020), also decided today, concerns the requirements set out in ORS 19.260(1)(a)(B) for the filing date of a petition for judicial review to relate back to its mailing date. That statute provides that the mailing date of a notice of appeal will count as its filing date if it is mailed or dispatched to the appellate court by a "class of delivery calculated to achieve delivery within three calendar days."

In Chapman , we considered an appellant's contention that the Court of Appeals had wrongly dismissed her notice of appeal as untimely when she had sent it to the court on the last day of the appeals period by ordinary first-class mail through the United States Postal Service (USPS). She asserted that, under ORS 19.260(1)(a)(B), her filing was timely, but the Court of Appeals concluded that ORS 19.260(1)(a)(B) could not in any circumstances apply to a notice of appeal sent by ordinary first-class mail. On review, we analyzed the statute differently and reversed. We concluded that, depending on the particular circumstances in which an appellant sends a notice of appeal by ordinary first-class mail, the relation-back benefit that ORS 19.260 (1)(a)(B) provides may apply. In Chapman's case, we concluded that her notice of appeal had been filed on the date it was mailed and should not have been dismissed as untimely. Chapman , 367 Or. at 414-15, ––– P.3d ––––.

In the present case, petitioner similarly contends that the Court of Appeals wrongly dismissed her petition for judicial review of an order of the Land Use Board of Appeals as untimely when she had mailed the petition by ordinary first-class mail on the last day of the appeals period.¹ The particular circumstances in which petitioner mailed her petition for judicial review are different from those at issue in Chapman . We apply the legal rule in Chapman to determine whether mailing the petition for judicial review to the Appellate Court Administrator in Salem on a Friday, from a post office in Portland, qualifies for the relation-back benefit in ORS 19.260(1)(a)(B). We conclude that ORS 19.260(1)(a)(B) does apply and that, as a consequence, petitioner's petition for judicial review was timely filed and should not have been dismissed.

The relevant facts are as follows. Petitioner was a party to a proceeding before the Land Use Board of Appeals (LUBA). LUBA delivered its final order in the matter on June 21, 2019, and petitioner sought to challenge it. Under ORS 197.850(3)(a), petitioner could obtain judicial review of the final order by filing a petition in the Court of Appeals "within 21 days following the date the board delivered or mailed the order upon which the petition is based." Twenty-one days from June 21, 2019, was July 12, 2019, a Friday.

Petitioner's lawyer prepared a petition for judicial review and, on July 12, 2019, directed his legal assistant to mail it to the Appellate Court Administrator, along with a certificate of filing and service indicating that the petition was being filed and served by certified mail, return receipt requested. He directed her to mail service copies of the petition for judicial review at the same time.

Although the lawyer had intended that the petitions be sent by certified mail, return receipt requested, as stated in the certificate of filing and service that was enclosed, the legal assistant instead sent them by first-class mail and purchased a certificate of mailing for each one.² The legal assistant also obtained a receipt from the USPS showing that the envelopes containing the petitions had been mailed at 3:27 p.m. on Friday, July 12, 2019, from the Waterfront Post Office in Portland (zip code 97204); that, for each envelope, the post office had received $2.05 for postage and $1.45 for a "certificate of mailing"; and that the "estimated delivery date" for each envelope, including the one addressed to the Appellate Court Administrator in Salem (zip code 97301), was Monday, July 15. A postage validation imprint (PVI) label that the post office affixed to the envelope sent to the Appellate Court Administrator also shows that that envelope was mailed on July 12.

The petition for judicial review was delivered to the Appellate Court Administrator on Monday, July 15, the date estimated on the USPS receipt. Shortly thereafter, the Appellate Commissioner issued an order dismissing the petition as untimely, explaining that it had been received by the court on July 15, 2019—more than 21 days from the date that the LUBA order had been served.

Petitioner sought reconsideration by the Court of Appeals, arguing that, under ORS 19.260(1)(a)(B), the petition had been filed on July 12, 2019, when it was mailed.³ Simultaneously, petitioner filed a copy of the receipt that her lawyer's legal assistant had obtained when she mailed the petition to the Appellate Court Administrator along with a "Certificate of Mailing under ORS 19.260(1)(b)." In that certificate, petitioner's lawyer certified that he had (1) caused the original petition for judicial review to be mailed to the Appellate Court Administrator on July 12, 2019, by "first class mail, a class of delivery calculated to achieve delivery within three calendar days," and (2) attached copies of a certificate of mailing and the USPS receipt described above, showing the mailing date as July 12, 2019 and an estimated delivery date of July 15, 2019. The court denied reconsideration, citing its decision in Chapman for the proposition that "mailing a notice of appeal by ordinary first-class mail does not accomplish filing on the date of mailing."

In Chapman , as in the present case, the question was whether, when the appellant sent her notice of appeal to the Appellate Court Administrator by first-class mail, she had mailed it by "a class of delivery calculated to achieve delivery within three calendar days." ORS 19.260(1)(a)(B).

The Court of Appeals interpreted those words as requiring mailing by a class of delivery that the USPS or commercial delivery service had designed to achieve delivery, in all circumstances , within three calendar days. State v. Chapman , 298 Or. App. 603, 606-07, 448 P.3d 721 (2019). And because the USPS's public website describes first-class mail in terms of delivery within "1-3 business days"—a different time period than within "three calendar days"—the court concluded that notices sent by ordinary first-class mail categorically would not fall within the scope of the provision. Id. at 607-14, 448 P.3d 721. Thus, the Court of Appeals held, the simple fact that the appellant had sent her petition for judicial review to the court by first-class mail precluded treating the mailing date as the filing date under ORS 19.260(1)(a)(B). Id. at 614, 448 P.3d 721.

When the Court of Appeals cited its Chapman decision in its order denying reconsideration in the present case, it was appealing to that same rationale. But petitioner here argues that the Court of Appeals was wrong in Chapman about the meaning of ORS 19.260(1)(a)(B) —and therefore was wrong to rely on Chapman in dismissing her petition for judicial review.

As evident from our decision today in Chapman , we agree with petitioner that the Court of Appeals misinterpreted ORS 19.260(1)(a)(B) in its decision. In our opinion reversing the Court of Appeals decision in that case, we held that, when ORS 19.260(1)(a)(B) refers to a class of delivery "calculated to achieve delivery within three calendar days," it is referring to a class that is designed or purposefully estimated by the delivery service to achieve delivery in that time period. We further concluded that, contrary to the Court of Appeals’ interpretation of the provision, the class of delivery need not be one that is designed or estimated to achieve delivery as a class and in all circumstances within three calendar days; rather, the class of delivery must be designed to achieve delivery of the particular notice of appeal within that time period. Chapman , 367 Or. at 415, ––– P.3d ––––. Applying that interpretation of ORS 19.260 (1)(a)(B), we held that, because the appellant had mailed her notice of appeal by ordinary first-class mail on a Monday in a week without holidays, the "1-3 business days" in which that class of mail had been designed to achieve delivery⁴ was, for that notice of appeal, the same as the "three calendar days" that ORS 19.260(1)(a)(B) required. Id . And, after rejecting an alternative theory for dismissal based on proof-of-mailing-date requirements in ORS 19.260(1)(b) that are not at issue here, we held that ORS 19.260(1)(a)(B) applied in the circumstances and that the appellant timely filed her notice of appeal on the date that she had mailed it. Id .

What follows from the rule in Chapman —that to obtain the relation-back benefit provided in ORS 19.260 (1)(a)(B), the class of delivery chosen by a litigant to file a notice of appeal must be one that is designed or estimated by the USPS (or commercial delivery service) to achieve delivery of that notice within three calendar days—is a case-specific examination of the circumstances in which petitioner here filed her petition for judicial review. In Chapman , the appellant had mailed her notice of appeal on a Monday in a week...