CHRISTY B. LOGAN, Appellant, vs. THE BON TON STORES, INC. and LIBERTY MUTUAL INSURANCE CORP., Appellees.
No. 19–0608
IN THE SUPREME COURT OF IOWA
Filed May 1, 2020
Lars Anderson, Judge.
Appeal from the Iowa District Court for Johnson County
Appeal from the Iowa District Court for Johnson County, Lars Anderson, Judge.
A claimant appeals the dismissal of her petition for judicial review of a workers’ compensation commission decision. REVERSED AND REMANDED.
Christy B. Logan, Iowa City, pro se.
Andrew D. Hall and Aaron W. Lindebak of Grefe & Sidney, P.L.C., Des Moines, for appellees.
Before us is a codicil to a case we decided last year. In Ortiz v. Loyd Roling Construction, 928 N.W.2d 651, 655 (Iowa 2019), we held that emailing a petition for judicial review to the opposing party’s counsel by the statutory deadline, where the petition was actually received and no prejudice resulted, substantially complied with
I. Facts and Procedural History.
Christy Logan worked as a retail salesperson for the Younkers department store in Coralville from 2008 to 2018. Her medical records indicate she suffered from significant left knee and bilateral knee pain during 2014.
On February 22, 2016, Logan filed a petition with the Iowa Workers’ Compensation Commission against her employer and its workers’ compensation insurance carrier.1 Logan alleged she suffered a work injury when she tripped on a rug at work on March 1, 2014. Approximately two months later, on April 4, 2016, Logan filed three other petitions with the commission. Each petition alleged further workplace injuries occurred when Logan tripped on a rug at work on April 4, April 23, and October 18, 2014, respectively.
Following a hearing, the deputy commissioner issued an arbitration decision on August 24, 2018. He found that Logan had not proved that a compensable workplace injury occurred on March 1, April 4, or April 23, 2014. The deputy noted that Logan already had a longstanding knee condition, and none of the medical records from the spring of 2014 referred to even a possible workplace injury. The deputy did find that Logan had sustained a compensable workplace injury on October 18. However, as the deputy reviewed the record, there was no evidence that Logan had lost time from work due to that injury. Also, as the deputy pointed out, Logan’s attending physician saw her on October 30 (twelve days later) and determined that any symptoms from the October 18 injury had been resolved. Accordingly, the deputy concluded that Logan should take nothing on her petitions alleging March 1, April 4, and April 23 workplace injuries. With respect to the October 18 injury, Logan was awarded only the costs of her October 30 medical consultation.
Logan filed an interagency appeal to the commissioner, who affirmed the deputy’s decision in an appeal decision on December 5, 2018. Logan then filed a pro se petition with the Iowa District Court for
On January 23, Younkers moved to dismiss Logan’s petition for judicial review. Younkers argued that
On March 13, the district court entered an order granting Younkers’ motion to dismiss. It observed that the ten-day service requirement was jurisdictional. See
Logan appealed, arguing that service by fax was sufficient, and we retained her appeal.
II. Standard of Review.
“Our review in this case is to correct errors at law.” Ortiz, 928 N.W.2d at 653.
III. Analysis.
Within ten days after the filing of a petition for judicial review the petitioner shall serve by the means provided in the Iowa rules of civil procedure for the personal service of an original notice, or shall mail copies of the petition to all parties named in the petition and, if the petition involves review of agency action in a contested case, all parties of record in that case before the agency. Such personal service or mailing shall be jurisdictional. The delivery by personal service or mailing referred to in this subsection may be made upon the party’s attorney of record in the proceeding before the agency.
On a quick read of the statute, the outcome of this case seems straightforward. Logan served Younkers’ attorney of record on the same day she filed her petition for judicial review in the Johnson County district court. However, she served it by fax, which would not normally be considered personal service or mailing. And the statute provides that “personal service or mailing shall be jurisdictional.”
But we are not writing on a blank slate. In fact, we wrote on the same slate just a year ago. In Ortiz, we held that timely service by email on the respondents’ attorney of record was sufficient to meet the requirements of
In Ortiz, like the present case, an employee was seeking judicial review of a workers’ compensation commission decision. Id. at 652. But there, unlike here, the claimant was represented by an attorney. Id. Nevertheless, the attorney neglected to strictly comply with
In reversing that dismissal, we first observed that the statute in question had been enacted in 1975 and amended in 1981, but had not been amended since then. Id. at 653. We noted the following:
At the time the statute was enacted, and when it was subsequently amended, electronic mailing was little more than a thought of a few, and the concept had little application or appreciation in society. It was in its infancy. The statute was enacted before what is now known as email was commonly used to send written communications.
Id. (citation omitted). We then went on:
[T]oday, email is one of the primary and accepted forms of sending communications in society. It has largely displaced mail by the postal service in most instances, including the legal system in Iowa. Email is not only the expected form of communication today but generally the required or preferred form. See
Iowa R. Civ. P. 1.442(2) (permitting service by mail or email); see alsoIowa R. Elec. P. 16.315(1)(a) (“Completing the registration process . . . constitutes a request for, and consent to, electronic service of court-generated documents and documents other parties file electronically.“);id. r. 16.315(1)(b) (governing electronic service of documents through electronic mail).
We also pointed out that our precedent applied a “substantial compliance” standard, not a strict compliance standard, to
Likewise, in Monson v. Iowa Civil Rights Commission, 467 N.W.2d 230, 232 (Iowa 1991), we held that service several days beyond the ten-day deadline substantially complied with the statute when the late service was the fault of the sheriff, not the petitioner or his counsel. We explained,
Service, though tardy, was completed in substantial compliance with the statute. The sheriff’s mistake cannot fairly be attributed to Monson, and the Commission has established no prejudice flowing from the brief delay.
Id. We added,
By its terms, the statutory service or mailing option is jurisdictional, but we have repeatedly held that “substantial—not literal—compliance with
section 17A.19(2) is all that is necessary to invoke the jurisdiction of the district court.”
Id. (quoting Brown, 423 N.W.2d at 194).
In fact, our substantial compliance standard under
One justification, perhaps, for recognizing substantial compliance under
In Ortiz, we qualified our endorsement of substantial compliance somewhat. We “acknowledge[d] that the leeway permitted under the substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.” 928 N.W.2d at 654. Yet we added that “we have in the past construed statutes written in an era that fit the means of communication at the time but were later displaced by different forms of communication.” Id. at 655. The use of the term “mail,” we held, “should not preclude the word to apply to a means of communication that would later displace postal mail as the standard and most reliable means of routine, reliable communication.” Id.
We had not yet decided Ortiz when the district court ruled in the present case. Nonetheless, unsurprisingly, the parties’ briefing in this court has focused on Ortiz. Some aspects of Ortiz clearly support Logan’s position on appeal; others less so.
We begin with the aspects of the opinion that favor Logan. Fax, like email, would not have been on the legislature’s mind when it last amended
On the other hand, Ortiz said in dicta (which we have already quoted) that “the leeway permitted under the substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.” Ortiz, 928 N.W.2d at 654.2 Also, Ortiz relied in part on the fact that email has largely supplanted snail mail. Id. at 653–54. And to a degree, Ortiz was driven by a textual approach that interpreted “mail” as
These facets of Ortiz arguably would not justify treating fax under
On balance, though, we conclude that Logan substantially complied with the service requirements in
The golden age of faxing has come and gone, but we strain to see why a fax copy of a petition for judicial review that was actually received and read by an attorney should be treated differently from an emailed copy that was received and read. Both are recognized forms of service on an attorney under
IV. Conclusion.
For the foregoing reasons, we hold that Logan substantially complied with the service requirements in
REVERSED AND REMANDED.
Christensen, C.J., and Appel and Waterman, JJ., join this opinion. McDonald, J., files a dissenting opinion in which Oxley, J., joins. McDermott, J., takes no part.
#19–0608, Logan v. Bon Ton Stores, Inc.
McDONALD, Justice (dissenting).
I respectfully dissent.
In concluding service by facsimile transmission substantially complies with the mandatory and jurisdictional service requirements the majority relies on Ortiz v. Loyd Roling Construction, 928 N.W.2d 651 (Iowa 2019). In that case, we specifically stated the “substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.” Id. at 654. Ortiz made a single exception for service by email, however, for two reasons. First, Ortiz explained email had replaced postal mail as the normal means of communication between lawyers. See id. (“Email . . . is used far more often among attorneys than postal mail and has replaced postal mail as the normal means to transmit legal documents among lawyers in Iowa.“). It was the technological “displacement [that drew] email into the circle of substantial compliance.” Id. Second, Ortiz noted this court had already created court rules governing email service in conjunction with the creation of Iowa’s electronic document management system (EDMS). See id. at 653. The Ortiz court held that service by email substantially complied with
Not only is Ortiz distinguishable from this case, Ortiz specifically precludes the result the majority opinion reaches today. As noted, Ortiz specifically stated the “substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.” Id. at 654. Ortiz created a narrow exception for email service in compliance with the Iowa Court Rules governing electronic service. See id. at 655. Unlike email, however, facsimile transmission has not replaced postal mail as the normal means of communication between lawyers. Outside the narrow context of email service pursuant to the Iowa Court Rules governing EDMS, Ortiz concluded “[a]ny other method of communication would be unexpected and jeopardize the purpose of the statute.” Ortiz, 928 N.W.2d at 655. It is unclear how the majority can conclude service of notice by facsimile transmission substantially complies with the statute when Ortiz specifically stated any other method of service outside of email service pursuant to the Iowa Court Rules governing electronic service “would be unexpected and jeopardize the purpose of the statute.” Id.
Ignoring the holding and rationale of Ortiz, the majority muses service by facsimile transmission might substantially comply with the statute because the statute is old and the legislature might now consider service by facsimile transmission as acceptable. This argument is unpersuasive. We interpret and apply statutes using “the legislature’s chosen statutory language, ‘not what it should or might have said.’ ” State v. Ross, ___ N.W.2d ___, ___ (Iowa 2020) (quoting Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). It is the legislature’s job to amend statutes in light of technological change, and a “change in the statute can only come from the legislature.” Ortiz, 928 N.W.2d at 653. We cannot exercise legislative power and amend the Iowa Code “in the guise of interpretation” or construction. See In re Det. of Geltz, 840 N.W.2d 273, 280 (Iowa 2013).
In addition to being contrary to the text of the statute and contrary to Ortiz, the majority opinion is also contrary to the great weight of persuasive authority. Other courts have concluded service by facsimile is not a substitute method for service where, as here, a statute or rule specifically provides for other methods of service not including facsimile service. See, e.g., United States v. Flowers, 464 F.3d 1127, 1131 (10th Cir. 2006) (“The Federal Rules . . . allow service by fax only when the party being served by fax has consented to it in writing.“); Firefighter’s Inst. for Racial Equal. v. St. Louis, 220 F.3d 898, 903 (8th Cir. 2000) (transmitting subpoena by fax is insufficient to satisfy
In accord with the fair and ordinary meaning of the statute, I would hold
Oxley, J., joins this dissent.