OTLA Trial Lawyer Spring 2021

48 Trial Lawyer • Spring 2021 more in attorney fees overall. Under ORS 19.260(1), an appellant’s notice of appeal is deemed filed on the date she mails it if the notice is dispatched via first class mail, which under the circumstances is designed or estimated to be delivered within three calendar days, and the notice contains an ordinary certificate attesting to the method of delivery. State v. Chapman , 367Or 388 (2021); Nakamoto, J. The criminal defendant was represented by Nathan R. Morales. James Coon and Elizabeth Savage filed an amicus brief on behalf of OTLA in support of the defendant. The pro se defendant attempted to appeal traffic violations by sending a notice of appeal via ordinary first-class mail. A postage validation imprint (PVI) label on the envelope showed the defen- dant had submitted her notice of appeal to the U.S. Post Office (USPS) for mail- ing on the last day of the applicable appeals period, a Monday. The appellate commissioner received the notice two days later, concluded it was untimely and dismissed the defendant’s appeal. The defendant sought reconsideration with the Court of Appeals, contending that under ORS 19.260(1)(a)(B), first- class mail was a “class of delivery calcu- lated to achieve delivery within three calendar days’” meaning that under the statute the date of filing related back to the date of mailing, which in her case was the last day of the appeals period. The defendant submitted evidence from the USPS website showing a delivery time of “1-3 business days” for first-class mail. An en banc Court of Appeals adhered to the appellate commissioner’s dis- missal of the appeal, holding that first- class mail was not a “class of delivery” designed to “achieve delivery within three calendar days” but rather three business days. The court reasoned ORS 19.260(1) (a)(B)’s use of the phrase “class of deliv- ery” meant the Legislature intended it to apply only when an appellant chose a class of delivery designed, as a whole, to achieve delivery within “three calendar days.”Thus, first-class mail, did not meet the requirements of ORS 19.260(1)(a) (B). Judge Aoyagi, in a concurring opin- ion, di sagreed, stat ing that ORS 19.260(1)(a)(B) required only that an appellant use a class of delivery calcu- lated to achieve delivery of their own notice of appeal within three calendar days. Because the defendant had submit- ted her notice of appeal on a Monday, and first-class mail provided for delivery within three business days, the defendant met the three calendar days requirement. However, Judge Aoyagi agreed with the result because she believed the defen- dant had not met proof-of-mailing-date requirements under ORS 19.260(1)(a) (B) and (1)(b). Those statutes state re- spectively that “the party filing the notice ha[ve] proof from the [USPS] * * * of the mailing or dispatch date” and “certif[y] * * * and file[] thereafter” proof of the date of mailing or dispatch with the court. Judge Aoyagi concluded the dated PVI label on the envelope in which the notice was sent failed to meet those re- quirements, mainly because the defen- dant could not certify and file proof of the mailing as such proof occurred after she mailed it. Two judges dissented, with Chief Judge Egan writing, asserting that the defendant met the requirements of ORS 19.260(1). The Supreme Court, after undertak- ing a statutory analysis, determined an appellant must use “a class of delivery designed or estimated by the USPS or other delivery service to achieve delivery of the notice in question, under the cir- cumstances, within three calendar days.” Because the defendant had submitted her notice of appeal on a Monday via first class mail, and therefore USPS estimated it to be delivered within 1 to 3 business days, the defendant met the requirements of ORS 19.260(1). The court also held Sheets Continued from p 47