Shearer v. Labor Commn

----ooOoo----

Gordon Shearer,
Petitioner and Appellant,

v.

Labor Commission,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010763-CA

F I L E D
November 16, 2001 2001 UT App 349 -----

Original Proceeding in this Court

Attorneys:
Aaron J. Prisbrey, St. George, for Petitioner
Thomas C. Sturdy, Salt Lake City, for Respondent -----

Before Judges Greenwood, Jackson, and Davis

PER CURIAM:

This court issued a sua sponte motion for summary disposition on the basis that this court lacks jurisdiction to hear the appeal because the original petition and filing fee were not received timely. Petitioner filed a response to the motion, Respondent did not.

Rule 14(a) of the Utah Rules of Appellate Procedure requires a petition for judicial review to be filed within 30 days after the date of the agency's final written order or decision. Seealso Utah Code Ann. § 63-46b-14(3)(a)(Supp. 2001). On September 25, 2001, counsel for Petitioner Shearer mailed the original petition for review and filing fee to this court. On the same day, counsel for Petitioner faxed the petition and filing fee check to this court. The original documents were not received by this court until September 26, 2001, one day after expiration of the time for filing. The clerk of the court accepted the faxed documents without the fees and represented to the party that the documents were timely and filed as of September 25, 2001. However, Rule 14(b) of the Utah Rules of Appellate Procedure indicates that: "At the time of filing any petition for review, the party obtaining the review shall pay to the clerk of the appellate court the filing fee established by law. The clerk shall not accept a petition for review unless the filing fee is paid." Petitioner argues that, because the faxed documents were accepted, the documents are deemed timely filed even though the fees were not timely received.

The timely filing of the petition for review is jurisdictional. The issue before this court is whether the payment of filing fees is also jurisdictional. In Hausknect v. Industrial Comm'n, 882 P.2d 683, 685 (Utah Ct. App. 1994), cert.dismissed, 938 P.2d 248 (Utah 1996), this court, addressing Rule 14(b) specifically, determined that the payment of filing fees is jurisdictional. However, the Utah Supreme Court case of Gorostieta v. Parkinson, 2000 UT 99,¶19, 17 P.3d 1110, 1115, analyzed Rule 3(f) of the Utah Rules of Appellate Procedure, which is worded identical to Rule 14(b). The Court determined that the payment of filing fees is not jurisdictional, although the timely filing of appropriate documents is jurisdictional. Since the language in the two rules is identical, they should be construed in the same manner. There is no reason to treat agency petitions differently than other appeals. Therefore, this court, consistent with Gorostieta, determines that the timely payment of filing fees is not jurisdictional. However, the clerk of the court is required, by both Rule 3(f) and 14(b), not to accept filings without the required fee. Further, it is the responsibility of the parties to file pleadings and fees in a timely manner. Our ruling is limited to this instance where the clerk accepted the faxed copy of the check, demonstrating mailing of fees, as timely.

Accordingly, we withdraw the sua sponte motion for summary disposition based upon lack of jurisdiction. Petitioner is directed to file its brief in this matter with this court no later than December 21, 2001.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

______________________________
James Z. Davis, Judge