Ososke v. Driver and Motor Vehicle Services

891 P.2d 633, 320 Or. 657, 1995 Ore. LEXIS 21

• Court: Oregon Supreme Court
• Decided: March 30, 1995
• Docket: DMV 38586; CA A83576; SC S41329
• Status: Published

Opinions

GRABER, J.

The issue in this case is whether the Court of Appeals erred in dismissing, sua sponte, the petition for judicial review on the ground that it was filed too late. We conclude that the Court of Appeals did err, and we reverse.

Petitioner sought judicial review in the Court of Appeals of a final order of the Driver and Motor Vehicle Services Branch of the Department of Transportation (DMV). That order suspended petitioner’s driving privileges. On the last page of the order, below the hearings officer’s signature, were the words “ISSUANCE AND MAILING DATE,” followed by a blank line. Handwritten on that line was the date “November 10, 1993.”

Petitioner filed a pre-printed form “Petition for Judicial Review” of that order on April 1, 1994. In the following excerpt from his petition, the underscored material was handwritten on blank lines:

“Petitioner seeks judicial review of the final order of the DMV in case number 038586. dated 11/10/93 received on 2/4/94.”

Attached to the petition were photocopies of the final order and a pre-printed envelope with a return address that said, in part: “Oregon Department of Transportation, DMV Services.” The envelope bears a postmark of February 4,1994. It is a window envelope, on which the recipient’s address is not visible.

On April 15,1994, the Court of Appeals, sua sponte, dismissed the judicial review. The order of dismissal read:

“Petitioner has petitioned for judicial review of an order of the Motor Vehicles Division dated November 10, 1993. The petition was filed April 1,1994, more than 60 days after the date of the order for which review is sought. The petition was required to be filed within 60 days after the date of the final order. ORS 183.482(1).

“Judicial review dismissed.”

Petitioner sought review of that order of dismissal. We allowed review to address the procedural issues involved.

The right to obtain appellate review is statutory and subject to limitations imposed by the statute conferring the right. Logsdon v. State and Dell, 234 Or 66, 70, 380 P2d 111 (1963). Here, the right to appellate review is governed by ORS 183.480 and 183.482.

ORS 183.480 provides in part:

“(1) Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order * * *.

“(2) Judicial review of final orders of agencies shall be solely as provided by ORS 183.482, 183.484, 183.490 and 183.500.”

ORS 183.482(1) provides in part:

“Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals. Proceedings for review shall be instituted by filing a petition in the Court of Appeals. The petition shall be filed within 60 days only following the date the order upon which the petition is based is served unless otherwise provided by statute. * * * Date of service shall be the date on which the agency delivered or mailed its order in accordance with ORS 183.470.” (Emphasis added.)

ORS 183.470(3) also is relevant. It provides that, in a contested case,

“The agency shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party # :{? *

Thus, the filing of a petition for judicial review within 60 days of the date on which a final order in a contested case is “served” vests jurisdiction to conduct judicial review in the Court of Appeals. ORS 183.482(1). An agency may serve the final order by mail. ORS 183.482(1), 183.470(3). For the purpose of ORS 183.482(1), then, the date on which a final order is deposited in the mail is the date of service and, therefore, the date from which the statute measures the 60-day limit to file a petition for judicial review with the Court of Appeals.

The Court of Appeals was wrong as a matter of law when it measured the 60-day period from “the date of the final order,” rather than from the date on which the final order was deposited in the mail (or otherwise served). It is the date of service, not the date of the final order itself, that controls.

The Court of Appeals was correct, however, that the untimely filing of a petition for judicial review of a final order of DMV is a jurisdictional defect. See ORS 183.482(1) (establishing requirements to confer jurisdiction on Court of Appeals); 1000 Friends of Oregon v. LCDC (Clatsop Co.), 301 Or 622, 625-26, 632, 724 P2d 805 (1986) (concluding that estoppel cannot confer jurisdiction when filing of petition for judicial review is untimely under ORS 183.482(1)). Conversely, the timely filing of a petition for judicial review of a final order of DMV requires the Court of Appeals to exercise its jurisdiction. ORS 183.480(1); ORS 183.482(1). Therefore, we next consider the timeliness of the petition for review in this case, in relation to the date of service.

Petitioner asserts that the final order was not “served” until February 4, 1994, the date on which the envelope was postmarked. If petitioner is correct, the filing date of the petition for judicial review in the Court of Appeals (April 1,1994) was within 60 days of the date of service of the final order, making the petition timely and its dismissal erroneous. DMV argues that the dismissal was proper.

DMV asserts, first, that the dismissal in this case was required, because “[t]he challenged [DMV] order expressly noted that it was issued and mailed to petitioner on November 10, 1993,” which is more than 60 days before April 1, 1994. (Emphasis in original.) That is tantamount to saying that the final order creates an irrebuttable presumption as to its date of mailing. Nothing in the relevant statutes creates such an irrebuttable presumption, however. To the contrary, ORS 183.482(1) measures the 60-day period from the date of service, which is described as an action in accordance with ORS 183.470. In other words, the statute makes the actual date of mailing the relevant date, without express limitation on the means of determining that date. We reject the argument that the mailing date stated on the final order creates a presumption that cannot be contradicted. To hold otherwise would frustrate the purpose of ORS 183.482(1), which is to give petitioners 60 days within which to seek judicial review, by utterly foreclosing review in any case in which an agency delays mailing its final order for more than 60 days or mistakenly states the date of mailing as more than 60 days before the actual date of mailing.

DMV also argues that the petition for judicial review filed here demonstrates its untimeliness without question, even if the mailing date stated in the final order is not conclusive. Again, we disagree.

We hold that the following rule applies in cases like the present one: When the Court of Appeals receives a notice of appeal or a petition for judicial review filed in that court, it must look at the face of the notice or petition to determine whether it has jurisdiction. In doing so, it must consider any attachments to the notice or petition. With respect to facts bearing on the jurisdiction of the Court of Appeals, that court must give the party filing the notice or petition the benefit of all favorable inferences that may be drawn from the notice or petition, including inferences that may be drawn from any attachments thereto. Dismissal sua sponte on jurisdictional grounds is appropriate only when, after the foregoing examination, there remains no question that the Court of Appeals lacks jurisdiction.¹

We next apply that rule to the present case. Neither this court nor the Court of Appeals has any way to know for sure when the final order in this case was deposited in the mail, that is, when the applicable 60-day period began to run. The petition for judicial review and its attachment permit conflicting, reasonable inferences on that point.

The notice on the final order states on its face that the final order was “mailed” on November 10,1993. On the other hand, the signed petition and attachment, on their face, imply that the final order was not mailed or otherwise served on November 10, 1993, but rather on February 4, 1994!

It appears that petitioner initially wrote “11/10/93” next to the word “dated” on the pre-printed form petition for judicial review, then crossed out that date and wrote “received on 2/4/94” after the word “dated.” That wording permits an inference that petitioner denied that the final order was served on “11/10/93,” although that was the date stated in the order. Petitioner alleged instead that he “received” the final order on February 4, 1994, even though DMV purported to have issued and mailed it on November 10, 1993.

The allegation that petitioner “received” the final order on February 4,1994, does not, by itself, contradict the statement by DMV that it mailed the final order on November 10,1993. That is because the petition says “received,” rather than “mailed.” In addition to alleging that he “received” the final order on February 4, 1994, however, petitioner stapled to the petition an envelope, bearing DMV’s pre-printed return address and a postmark of February 4, 1994. If the final order in this case were folded in thirds, it would fit into that envelope, with petitioner’s name and address visible through the window. A reasonable inference to be drawn from the petition for judicial review as a whole is that the attached final order, as to which judicial review was sought, was “received” in the attached envelope. In other words, if one reads the petition for judicial review as a whole, including its attachments, one reasonably may infer that DMV served the final order by mail on February 4,1994. If that is so, then the petition for judicial review was filed in a timely manner. February 4 is within 60 days of April 1,1994, when petitioner filed his petition for judicial review in the Court of Appeals.

To summarize, the petition for judicial review permits a reader reasonably to infer that the final order was mailed either on November 10,1993, or on February 4,1994. In view of those conflicting inferences, the Court of Appeals erred when it dismissed petitioner’s claim, sua sponte, without further inquiry.

For the foregoing reasons, the decision of the Court of Appeals, dismissing the petition for judicial review, is reversed. The case is remanded to the Court of Appeals for proceedings consistent with this opinion.

1 Although not controlling, Ensley v. Fitzwater, 293 Or 158, 645 P2d 1062 (1982), points the way toward the rule that we announce here. In Ensley, this court addressed whether the Court of Appeals had jurisdiction, when the notice of appeal stated that appeal was taken from a nonappealable order, but also referred to an appealable judgment, and that judgment was among the documents attached to the notice. 293 Or at 160. This court concluded that the notice of appeal was sufficient to confer jurisdiction on the Court of Appeals:

“In this case the adverse party and an appellate court could easily determine from the face of the notice, documented by the judgment attached, that the judgment entry necessary to its jurisdiction was present and that appeal was taken from that judgment.” 293 Or at 162.

In determining whether there was jurisdiction, then, the Ensley court looked to matters alleged in the notice of appeal and considered attachments thereto, even though the attachments contradicted and supplemented the text of the notice.