State v. Chapman

367 Or. 388

478 P.3d 960

STATE of Oregon, Respondent on Review,

v.Allison CHAPMAN, aka Alison Chapman, aka Allison Kate Chapman, Petitioner on Review.

CC 18VI72579 (SC S067066)

Supreme Court of Oregon, En Banc.

Argued and submitted September 15, 2020.

December 31, 2020

Nathan R. Morales, Perkins Coie LLP, Portland, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Gregory J. Mina.

Julia Glick, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

James S. Coon, Thomas, Coon, Newton & Frost, Portland, and Elizabeth C. Savage, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Rachael A. Federico and Rachel M. Hungerford, Legal Aid Services of Oregon, Salem, filed the brief for amicus curiae Legal Aid Services of Oregon.

NAKAMOTO, J.

In Oregon, an appellate court lacks jurisdiction to hear an appeal if the appellant failed to file a notice of appeal within the time period provided by statute. ORS 19.270(2)(b). Filing a notice of appeal may be accomplished by mail or commercial delivery, and any notice received within the statutory period is considered timely. But, in certain circumstances, the date of mailing or dispatch of a notice of appeal is deemed to be its date of filing, regardless of the date of its receipt by the appellate court. One of those circumstances is set out in ORS 19.260(1)(a)(B), which provides that the date of filing a notice of appeal is the date of mailing or dispatch if the notice is mailed or dispatched "by a class of delivery calculated to achieve delivery within three calendar days" and the party filing notice has proof of the mailing or dispatch date.

The issue in the present case is whether ordinary first-class mail is, or can be, a "class of delivery calculated to achieve delivery within three calendar days." The Court of Appeals majority concluded that first-class mail can in no circumstances be such a class of delivery and that, therefore, a notice of appeal that had been dispatched by first-class mail on the last day of the appeals period and received by the court two days later was untimely—requiring dismissal of the underlying appeal. State v. Chapman , 298 Or. App. 603, 448 P.3d 721 (2019) (en banc). We reject the majority's analysis and conclusion and also reject an alternative theory for dismissing the appeal that was raised in a concurring opinion—a supposed failure to comply with proof-of-mailing-date requirements in ORS 19.260(1)(a)(B) and (1)(b). Accordingly, we reverse the Court of Appeals’ dismissal of the appeal and remand to that court for further proceedings.

I. BACKGROUND

The facts that are relevant to this jurisdictional issue are not in dispute. On June 8, 2018, a Coos County Circuit Court judge entered a general judgment convicting defendant of driving while suspended, ORS 811.175, and failure to register a vehicle, ORS 803.300. Wishing to appeal from that judgment and acting without legal representation, defendant sent a notice of appeal to the Appellate Court Administrator by first-class mail. Defendant certified that the "method of filing" she had used for her notice was "United States Postal Service, ordinary first class mail." A postage validation imprint (PVI) label¹ on the envelope showed that petitioner had submitted her notice of appeal to the United States Post Office (USPS) for mailing on Monday, July 9, 2018, the last day of the applicable appeals period.²

The Appellate Court Administrator received defendant's notice of appeal two days later, on Wednesday, July 11, 2018. The notice was forwarded to the Appellate Commissioner, who concluded that it was untimely and issued an order dismissing defendant's appeal on that ground.

Defendant sought reconsideration by the Court of Appeals, arguing that first-class mail was a "class of delivery calculated to achieve delivery within three calendar days," meaning that, under ORS 19.260(1)(a)(B), the date of filing related back to the date of mailing, which in her case was July 9, 2018—the last day of the appeals period. In support of her argument, defendant submitted material from the United States Postal Service (USPS) public website showing a delivery time of "1-3 business days" for first-class mail. See https://www.usps.com/ship/first-class-mail.htm (accessed Dec. 18, 2020).

On reconsideration, a divided Court of Appeals, sitting en banc, adhered to the Appellate Commissioner's dismissal of the appeal. Chapman , 298 Or. App. at 614, 448 P.3d 721. A majority of the Court of Appeals concluded that the class of delivery by which defendant sent the notice, i.e. , first-class mail, was not one that was "calculated to achieve delivery within three calendar days." Pointing to the online USPS publication on which defendant had relied, the majority declared that, instead, first-class mail was calculated, i.e. , "planned or contrived," by the USPS, to achieve delivery within three business days—an entirely different time period. Id. at 607-11, 448 P.3d 721. Although the majority acknowledged that, in some circumstances, a delivery time of three business days would not differ from a delivery time of three calendar days, it concluded that the existence of such circumstantial possibilities was irrelevant to the statute's application. That was so, in the majority's view, because the statute's use of the term "class of delivery" established that the legislature intended it to apply only when the would-be appellant chose a class of delivery that was designed, as a whole , to achieve delivery within three calendar days. Id. at 611-14, 448 P.3d 721. And because first-class mail is not designed, as a whole , to achieve delivery in three calendar days, but rather, in three business days, an appellant who chooses to send a notice of appeal by first-class mail is not entitled to the relation-back benefit that ORS 19.260(1)(a)(B) provides. Id. at 614, 448 P.3d 721. The Court of Appeals majority also relied on evidence in the statutory and legislative history of ORS 19.260(1)(a)(B) from which it inferred that the legislature intended to exclude ordinary first-class mail from the statute's sphere of application. Id. at 608-11, 448 P.3d 721.

In a concurring opinion, one Court of Appeals judge rejected the majority's interpretation of the statute. She understood ORS 19.260(1)(a)(B) to require only that would-be appellants use a class of delivery calculated to achieve delivery of their own notice of appeal within three calendar days and concluded that, in the circumstances, defendant's use of first-class mail had satisfied that requirement. Chapman , 298 Or. App. at 614-22, 448 P.3d 721 (Aoyagi, J., concurring).³

However, the concurring judge agreed with the majority's result because, in her view, defendant had not satisfied other requirements set out in subparagraph (1)(a)(B) and paragraph (1)(b) of the statute—respectively, that "the party filing the notice ha[ve] proof from the United States Postal Service * * * of the mailing or dispatch date" and "certif[y] * * * and file[ ] thereafter" proof of the date of mailing or dispatch with the court to which the appeal is taken. Id. The concurring judge rejected defendant's contention that the dated PVI label on the envelope in which the notice had been sent—which, in accordance with ordinary practice, had been added to the case file—had satisfied those requirements. Id.

Two judges dissented. The dissenting judges would have held that defendant had satisfied both the "class of delivery" and proof-of-mailing-date requirements of ORS 19.260(1). 298 Or. App. at 622-29, 448 P.3d 721 (Egan, C.J., dissenting).

Defendant petitioned for review by this court, and we allowed the petition to consider whether the Court of Appeals majority, the concurrence, or both had erred in their analyses of the "class of delivery" and proof-of-mailing-date requirements in ORS 19.260(1). Two organizations, Oregon Trial Lawyers Association (OTLA) and Legal Aid Services of Oregon, moved to appear as amicus curiae , and we granted their motions.

II. THE STATUTE

Although the issues presented in this case focus on two specific provisions within ORS 19.260 —subparagraph (1)(a)(B) and paragraph (1)(b)—the parties’ contextual arguments rely heavily on other provisions in the statute. To make those arguments more immediately accessible, we begin by setting out the first two subsections of ORS 19.260 in their entirety. By way of introduction, we note that subsection (1) sets out the circumstances in which the date of filing a notice of appeal in the relevant appellate court will relate back to the date of its mailing or dispatch (assuming that the notice is sent by mail or commercial delivery service). Subsection (2), which is not directly at issue here, sets out the means by which service of a notice of appeal on other parties may be accomplished by mail or commercial delivery and specifies that, when such means are used, the date of service is the date of mailing or dispatch. Thus, ORS 19.260 provides, in part:

"(1)(a) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be accomplished by mail or delivery. Regardless of the date of actual receipt by the court to which the appeal is taken, the date of filing the notice is the date of mailing or dispatch for delivery, if the notice is :

"(A) Mailed by registered or certified mail and the party filing the notice has proof from the United States Postal Service of the mailing date; or

"(B) Mailed or dispatched via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days, and the party filing the notice has proof from the United States Postal Service or the commercial delivery service of the mailing or dispatch date .

"(b) Proof of the date of mailing or dispatch under this

...