A Private Postage-Meter Mark is Not a Postmark

As SCOIDBlog looks at things from a "criminal defense point of view," we don't get too worked up about civil cases. That's true even when the appellants are Hollywood stars, like yesterday's opinion involving Tom Hanks, Rita Wilson (the stars) and a Sun Valley construction company (not a star). (Spoiler alert: They can all go to arbitration now.) But today there is an interesting issue in a civil case which might have an effect on criminal law practitioners who dabble in other areas. Smith v. Idaho Department of Labor, http://www.isc.idaho.gov/opinions/Smith%20v.pdf

The Department of Labor found that Boise attorney and local legend V.K. Smith, Jr. "willfully failed to file a fourth quarter 2007 Idaho Employer's Quarterly Insurance Tax Report." On the last day to file a notice of appeal, V.K. "sent a notice of appeal by mail and by facsimile. Smith sent the facsimile at 5:22 on May 15, 2008, and the Commission received Smith's appeal by mail on May 28, 2008. The envelope arrived with a private-postage-meter stamp dated May 15, 2008, but also bore a U.S. Postal Service (USPS) backstamp from Watson, Pennsylvania, dated May 20, 2008." The Commission held the appeal was not timely and V.K. appealed.

The Supreme Court affirmed the dismissal. In reviewing cases, the Court wrote: "Read together, these cases require that, in the absence of a USPS postmark, an applicant must provide evidence from the USPS to verify that the mailpiece was sent on a particular day. The USPS routinely postmarks stamped mail but does not ordinarily postmark metered mail. Thus, to ensure that a mailed notice is timely filed, parties should always either use an ordinary postage stamp to ensure that the mailpiece is postmarked or specifically request a postmark on metered mail to verify when the USPS took custody." (Emphasis added.)

Two thoughts immediately come to mind. First, there is no rule requiring you to file your notice of appeal on the last day. Second, this USPS postmark rule doesn't apply to notices of appeal which require the physical filing in the clerk's office, e.g., notices in criminal cases. (The Industrial Commission has a rule that "filing" occurs when the appeal is mailed.)