Whitehead v. Tulsa Public Schools

Whitehead v. Tulsa Public Schools
1998 OK 71
968 P.2d 1211
69 OBJ 2510
Case Number: 89856
Decided: 07/07/1998
Mandate Issued: 11/20/1998
Supreme Court of Oklahoma

MARTHA J. WHITEHEAD, Petitioner,
v.
TULSA PUBLIC SCHOOLS, OWN RISK, and THE WORKERS' COMPENSATION COURT, Respondents.

[968 P.2d 1212]
ORIGINAL PROCEEDING FROM THE
WORKERS COMPENSATION COURT

¶0 Petitioner seeks review of an order of a three-judge panel of the Workers' Compensation Court. The order shows it was filed in the Workers' Compensation Court and mailed to the parties on July 16, 1997. The petition for review was delivered to the Clerk of the Appellate Courts on August 6, 1997, by the United States Postal Service in an envelope with the postmark date of August 5, 1997 affixed thereto. This Court noticed petitioner to show cause why the petition for review should not be dismissed as untimely. Respondent sought dismissal.

MOTION TO DISMISS PETITION FOR REVIEW DENIED;
REVIEW PROCEEDING SHALL PROCEED.

William J. Anton, Tulsa, Oklahoma, for petitioner.

Lucia A. Lockwood, ROSENSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, for respondent.

MEMORANDUM OPINION

ALMA WILSON, Justice:

¶1 The sua sponte jurisdictional issue we consider is: Whether the date of mailing constitutes the date of filing pursuant to

¶2 This is a review proceeding from an order of a three-judge panel of the Workers' Compensation Court. The twenty-day time period for commencing review was triggered by the mailing of the order to the parties on July 16, 1997.

¶3 Commencement of an appellate proceeding in this Court by timely mailing was originally authorized in

¶4 The various statutory versions of the mailing requirements for commencement of an appeal begin with the authorization that "the filing of the petition in error may be accomplished either by delivery or by sending it

¶5 The purpose of the repealed § 1004(A) and the effective § 990A(B) is elimination of the travel requirement placed upon those litigants some distance away from Oklahoma City in order to commence an appellate review proceeding. The Legislature intended to provide a method to commence appellate reviews that would have evenhanded statewide application. Authorizing commencement of appeals by certified mail with return receipt requested did not achieve the evenhanded statewide application intended. This is obviously so because the Legislature continued to amend § 990A(B) to achieve its purpose. The statutory changes relate to the proof required to establish the date of mailing which include the postmark affixed by the post office to the envelope, other packaging of the petition in error (petition for review), or a receipt for certified mail.

KAUGER, C.J., HODGES, LAVENDER, OPALA, and WILSON, JJ., concur.

SUMMERS, V.C.J., SIMMS, HARGRAVE, and WATT, JJ., dissent.

FOOTNOTES

1 Title 85 O.S.Supp.1996, § 3.6(C) provides that an action may be commenced in the Supreme Court to review an order, decision or award of the Workers' Compensation Court within twenty (20) days after a copy has been sent by the Administrator to the parties affected and the Supreme Court shall prescribe rules for the commencement. Rule 1.100 of the Oklahoma Supreme Court Rules, 12 O.S.Supp.1997, ch. 15, App., provides that a petition for review of an appealable order of the Workers' Compensation Court will be deemed filed when mailed in accordance with Rule 1.4.

2 1990 Okla. Sess. Laws, Ch. 251, § 4, which provided in part:

. . . The filing of the petition in error may be accomplished either by delivery or by sending it by certified mail return receipt requested to the Clerk of the Supreme Court. The date of mailing, as shown by the postmark or other proof from the post office of the date of mailing, shall constitute the date of filing of the petition in error. If there is no proof from the post office of the date of mailing, the date of receipt by the Clerk of the Supreme Court shall constitute the date of filing of the petition in error. . . .

3 1991 Okla. Sess. Laws, Ch. 251, § 15.

4 1993 Okla. Sess. Laws, Ch. 351, § 18.

5 1994 Okla. Sess. Laws, Ch. 343, § 5.

6 Subsection B of §  990A was not changed by the most recent amendment. 1997 Okla. Sess. Laws, Ch. 102, § 7. Subsection B provides:

B. The filing of the petition in error may be accomplished either by delivery or by certified mail with return receipt requested to the Clerk of the Supreme Court. The date of filing or the date of mailing, as shown by the postmark affixed by the post office or other proof from the post office of the date of mailing, shall constitute the date of filing of the petition in error. If there is no proof from the post office of the date of mailing, the date of receipt by the Clerk of the Supreme Court shall constitute the date of filing of the petition in error.

7 The words "by sending it" were deleted in 1994 Okla. Sess. Laws, Ch. 343, §5.

8 By published order, this Court sua sponte dismissed a petition in error that was mailed by priority mail for non-compliance with the certified mail, return receipt requested, requirement in 12 O.S.Supp.1993, § 990A. Rusk v. Independent School District No. 1 of Tulsa County, 1994 OK 128, 885 P.2d 1365.

9 Curtis v. Board of Education of Sayre Public Schools, 1995 OK 119, 914 P.2d 656.

10 Certified mail with return receipt requested is the commonly recognized mail that provides proof of mailing and delivery to the sender. The proof received by this Court which establishes date of mailing, hence timeliness of the filing, is the postmark affixed to certified mail, priority mail, or regular first class mail.

11 Distance may not be the only factor considered by the Legislature. It is commonly known, and this Court takes judicial notice of the fact, that in the more densely populated areas of the state, the United States Postal Service offers extended hours. The public in Oklahoma City has 24-hour access to U.S. postal service seven days a week so that a litigant could mail a petition in error (petition for review) by return-receipt-requested mail as late as a few minutes before midnight and secure a postmark thereon. The public in our rural areas do not have round-the-clock access to U.S. postal service.

12 This Court has a duty to construe statutory language so that it will be free from discriminatory effect. Neumann v. Oklahoma Tax Commission, 1979 OK 64, 596 P.2d 530. Statutes concerning the right to appeal will be construed to extend to all parties evenhandedly. City of Tulsa v. Board of Trustees of Police and Retirement System of City of Tulsa, 1963 OK 267, 387 P.2d 255.

13 12 O.S.Supp.1996, § 990A(E) provides "Except for the filing of a petition in error as provided herein, all steps in perfecting an appeal are not jurisdictional."

[968 P.2d 1213] WATT, J., with whom SUMMERS, V.C.J., SIMMS, and HARGRAVE, JJ., join, dissenting.

I must recede from the Court's pronouncement today that the subject appeal was timely filed. Clearly, until today extant jurisprudence and the clear language of

The Court, by its sua sponte consideration of this most important jurisdictional issue, attempts to solve a problem which does not exist. If there is a problem at all it is the fact that practitioners procrastinate and wait until the eleventh hour when the statutory time requirements could easily be met by timely attention to appellate matters. If indeed, this "problem" existed, it is one for the legislature to resolve and not this Court. For the foregoing reasons, I must respectfully dissent.

[968 P.2d 1213] SUMMERS, V.C.J., dissenting, joined by Simms, Hargrave, and Watt, JJ.

¶1 To qualify for the "mailing rule" the Legislature has written into law the requirement of sending the petition "by certified mail return receipt requested". 12 O.S.1997 Supp. § 990A(B). The amendments referred in the opinion in no way confuse or lessen that requirement. Where the language of a statute is clear and unambiguous, and does not appear to be facially unconstitutional, I would give effect to its words as written.