THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. JOE H. LUGO, Defendant-Appellant.
Second District No. 2-07-0296
Appellate Court of Illinois, Second District
June 26, 2009
Rehearing denied July 14, 2009.
391 Ill. App. 3d 995
PRESIDING JUSTICE ZENOFF delivered the opinion of the court.
Accordingly, the order of the circuit court of Alexander County entering a summary judgment in favor of defendants is hereby reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.
Reversed; cause remanded.
WEXSTTEN, P.J., and CHAPMAN, J., concur.
Opinion filed June 26, 2009. - Rehearing denied July 14, 2009.
Thomas A. Lilien and Darren E. Miller, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Joseph E. Birkett, State‘s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State‘s Attorney, and Lawrence M. Bauer and Marshall M. Stevens, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
PRESIDING JUSTICE ZENOFF delivered the opinion of the court:
This appeal presеnts the question of whether the proof of mailing requirements of
BACKGROUND
Defendant, Joe H. Lugo, was indicted on three counts of solicitation of murder for hire (
Defendant‘s notice of appeal was file-stamped with the date of March 15, 2007. An envelope is taped to the back of the notice of appeal. The envelope is addressed to the clerk of the “Eighteenth Judicial Circuit Court” and a return address with defendant‘s name appears in the upper left corner of the envelope. The postmark on the envelope bears the date of March 2, 2007. The envelope is not file-stamped with any date. No certificate or affidavit of mailing for the notice of appeal is included in the record on appeal.
Although neither party rаises the issue of our jurisdiction, we have an independent duty to ascertain whether we have jurisdiction. People v. Smith, 228 Ill. 2d 95, 104 (2008). A timely filed notice of appeal is necessary to establish this court‘s jurisdiction. People v. Blanchette, 182 Ill. App. 3d 396, 398 (1989).
“Unless received after the due date, the time of filing records, briefs оr other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing shall be deemed the time of filing. Proof of mailing shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court.”
155 Ill. 2d R. 373 .
Rule 12(b)(3) provides that service is proved “in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that prоper postage was prepaid.”
In the present case, the order from which defendant appeals was entered on February 2, 2007. He did not file a motion challenging that order. Thus, his notice of appeal was due within 30 days of the entry of the February 2, 2007, order. Thirty days from February 2, 2007, was March 4, 2007. March 4, however, was a Sunday, thereby making the notice of appeal actually due by March 5, 2007. See
To determine whether the postmark may serve as proof of mailing under Rule 373, we must interpret the language of Rule 373. In doing so, we apply the rules of statutory construction. People v. Roberts, 214 Ill. 2d 106, 116 (2005) (rules of statutory construction apply equally to the interpretation of supreme court rules). Our primary goal in construing the rule is to give effect to the intent of the drafters of the rule. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998). The best indicator of the drafters’ intent is the language used in the rule, which should bе given its plain and ordinary meaning. Rennick, 181 Ill. 2d at 405. Further aids of construction should not be used where the rule‘s language is plain and unambiguous. Id.
The language of Rule 373 specifically provides that “[p]roof of mailing shall be as provided in Rule 12(b)(3).” (Emphasis added.)
Had the drafters of Rule 373 intended to allow for proof of mailing to take a form other than a certificate or affidavit of mailing, they could have easily done so, either by delineating the various forms of permissible proof or by avoiding the use of restrictive language such as “shall.” In fact, a review of Rule 373‘s evolution since its enactment in 1967 reveals that our supreme court removed from the rule language specifically allowing postmarks to serve as proof of mailing and replaced it with language that proof of mailing “shall be” as provided in Rule 12(b)(3). The 1967 version of Rule 373 provided, “The time of mailing, which may be evidenced by a post mark affixed in and by a United Stаtes Post Office, shall be deemed the time of filing the record on appeal, any brief, excerpts from record, or any other paper required to be filed in a reviewing court within a specified time.” (Emphasis added.)
Following an amendment in 1981, however, Rule 373 no longer provided for proof of mailing by a postmark, instead providing, “Proof
“As originally adopted the rule provided that the time of mailing might be evidenced by the post mark affixed by a United States Post Office. Because of problems with the legibility of post marks, and delay in affixing them in some cases, the rule was amended in 1981 to provide for the use of affidavits of mailing [or] United States Postal Service certificates of mailing.”
84 Ill. 2d R. 373 , Committee Comments.
In 1993, our supreme court again amended Rule 373, resulting in its present language, which provides that proof of mailing “shall be as provided in Rule 12(b)(3).”
These amendments to Rule 373 make apparent that our supreme court was aware of the option of allowing postmаrks to serve as proof of mailing. The supreme court, however, after noting problems with postmarks, such as illegibility and delay in the affixation of postmarks, chose to eliminate that option by requiring that proof of mailing be in the form of a certificate or affidavit of mailing, as provided in Rule 12(b)(3). In seeking to remedy the situations where the postmark was illegible or belatedly affixed, it could have included language allowing postmarks to serve as proof of mailing only where legible and not appearing to have been belatedly affixed. Certainly, the legislature has provided a prime example of how to craft such language, in section 1.25 of the Statute on Statutes (
“Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with *** the State or any political subdivision thereof, by the laws of this State:
(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it;
(2) if mailed but not received by the State or political subdivision, or if received but without a cancellation mark or with the cancellation mark illegible or erroneous, shall be deemed filed with or received by the State or political subdivision to which it was
required or authorized to be directed on the date it was mailed, but only if the sender establishes by competent evidence that the writing or payment was deposited, properly addressed, in the United States mail on or before the date on which it was required or authorized to be filed or was due.” 5 ILCS 70/1.25 (West 2006).1
Section 1.25 illustrates the possibility of allowing a postmark to serve as proof of mailing when legible and affixed in a timely manner but requiring other proof of mailing when the postmark is illegible or erroneously affixed. The supreme court, in Rule 373, chose to eliminate the use of postmarks altogether, opting instead to require in all cases a certificate or affidavit of mailing pursuant to Rule 12(b)(3).
The dissent contends that the history and amendments to Rule 373 reflect a “consistent broadening of thе application of the mailbox rule.” 391 Ill. App. 3d at 1009. According to the dissent, the amendments to Rule 373 did not displace a postmark as a permissible form of proof of mailing, but merely allowed for an affidavit or certificate of mailing to serve as an additional method of proving the date of mailing. We disagree, believing instead that the amendments to Rule 373 indicate an intent on the part of the rule‘s drafters to narrow the permissible forms of proof of mailing. As discussed, when Rule 373 was first enacted in 1967, it provided that proof of mailing ”may be evidenced by a post mark affixed in and by a United States Post Office.” (Emphasis added.)
Our reading of Rule 373 is supported by our supreme court‘s recent decision in Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209 (2009). In Secura, the supreme court was faced
The dissent points out that Secura contains no mention of postmarks. We agree that the supreme court in Secura was faced with a different factual situation from the one with which we are faced. We do not agree, however, that because Secura does not contain mention of postmarks it lends no support to our decision. Although Secura involved a cover letter while the present case involves a postmark, both cases necessitate an examination of the proof of mailing requirements of Rule 373. The supreme court in Secura answered this question by stating that the “only” way to take advantage of Rule 373 is to provide proper proof of mailing pursuant to Rule 12(b)(3). Id. at 216. As discussed above, Rule 12(b)(3) requires a certificate or affidavit of mailing. As the requirements of Rule 373 do not turn on whether the case involves a cover letter or a postmark, we do not believe that the fact Secura involved a cover letter while the present case involves a postmark diminishes the relevance of Secura to our decision. The supreme court held that a cover letter did not satisfy the requiremеnts of Rule 373 because it was not a certificate or affidavit of mailing as required by Rule 12(b)(3). Id. at 216. Similarly, a postmark is not a certificate or affidavit of mailing. Given that the postmark in the present case suffers from the same infirmity that prevented the cover letter in Secura from being sufficient proof of mailing under Rule 373, we believe that Secura is quite supportive of our determination that a postmark is not sufficient proof of mailing under Rule 373.
The dissent further argues that we have interpreted Rule 373 in such a way as to make it impossible for incarcerated litigants to take advantage of the rule, because such individuals will be unable to execute affidavits of mailing stating that they have mailed their documents by placing them in the United States mail. The dissent contends that incarcerated litigants will be unable to execute such affidavits because they are not permitted to place their documents directly into the United States mail but instead must give their documents to prison staff who, in turn, place the documents in the mail for the litigants. According to the dissent, officials of the institutions in which litigants are incarcerated, as the people who place the documents directly into the United States mail, will be forced to execute the affidavits, thereby imposing a burden on those officials and potentially creating litigation between the litigant and the official regarding the execution of the affidavit.
The issue before us is whether a postmark is sufficient proof of mailing under Rule 373. We have concluded that it is not. While Rule 12(b)(3) requires a certificate or affidavit of mailing from the person who mailed the document, we have not made any determination on the issue of what constitutes mailing under Rule 373 and Rule 12(b)(3). Whether an incarcerated litigant‘s documents are considered mailed when they are placed in the hands of the prison staff or only when they are placed in a United States Post Office receptacle is not before us and we express no opinion on the matter. Rather, we determine only that where a document is mailed—whether by placing it in the hands of prison staff or placing it in a United States Post Office
The dissent notes that a liberty interest is involved in the present case, where defendant is incarcerated, and suggests that Secura is also distinguishable for that reason. We observe that the supreme court has not implemented separate rules governing filing documents in criminal appeals and civil appeals. Rather, the supreme court explicitly chose to make Rule 373 applicable to criminal appeals in Rule 612(s). Had the supreme court desired to provide separate rules for filing in criminal cases—whether involving incarcerated or nonincarcerated defendants—it certainly could have done so, as an entire section of the supreme court rules is devoted to rules that apply solely in the context of criminal appeals. Moreover, Rule 373, Rule 12(b)(3), and Secura have been applied in other cases involving incarcerated defendants. See People v. Tlatenchi, 391 Ill. App. 3d 705 (2009) (strictly applying Rules 373 and 12(b)(3) and relying on Secura in determining that an incarcerated defendant‘s motion to withdraw her guilty plea was untimely where the defendant‘s proof of service was not sworn to and thus did not constitute an affidavit of mailing).
We do not have the authority to excuse the filing requirements of the supreme court rules governing appeals. Secura, 232 Ill. 2d at 218. Thus, in accordance with the plain language of Rule 373, we hold that the postmark on the envelope that is taped to the back of defendant‘s notice of appeal does not meet the proof of mailing requirements of Rule 373. Accordingly, defendant is precluded from taking advantage of Rule 373‘s provision that documents received after the due date are deemed filed as of the date they are mailed. As defendant‘s notice of appeal was file-stamped with the date of March 15, 2007, it was not filed within 30 days of the order dismissing defendant‘s postconviction petition. Defendant‘s notice of appeal is therefore untimely and we lack jurisdiction over this appeal. See Secura, 232 Ill. 2d at 212, 217-18 (holding that the appellate court lacked jurisdiction where the notice of appeal was received outside of the 30-day appeal period and the appellant failed to prove by certificate or affidavit of mailing that it had mailed the notice of appeal within the 30-day period); see also Blanchette, 182 Ill. App. 3d at 399.
In sum, we conclude that defendant‘s notice of appeal was untimely because the plain language оf Rule 373 requires proof of mailing in the form of a certificate or affidavit of mailing, and a postmark is neither. We are therefore without jurisdiction.
Appeal dismissed.
BURKE, J., concurs.
JUSTICE McLAREN, dissenting:
I respectfully dissent.
I believe that the majority reads Rule 12(b)(3) too literally and narrowly. The paramount rule of our interpretation is to glean the intent of Rule 12(b)(3) and then follow it. I do not believe that the majority would deny that one of the intended consequences of the rule is to provide easy access to appellate review. The supreme court has adopted the present and more liberal mailbox rule that did not compromise the integrity of the original rule and made the date of mailing provable through proof other than a postmark. The original rule made the United States Postal Service (USPS) the agent of the recipient and determined that placement in the hands of the USPS was placement in the hands of the recipient. Previously, the date of placement in the hands of the recipient was determined by the postmark affixed by the USPS.2 The USPS is normally a third party, a messenger so to speak, between a party and the courthouse and the
The comments are silent as to why a legible postmark is no longer competent proof of mailing. The comments are also silent as to whether it was the drafters’ intent to abandon the postmark as competent proof of mailing. There is nothing in any case or comment to the rules that supports the proposition that a legible postmark is incompetent evidence of when the USPS аcknowledged receipt of the paper being placed in the mail. Furthermore, the comments do not relate that a legible postmark is inherently unreliable or subject to fraudulent misrepresentation. There is nothing in the comments that affirmatively disavows, proscribes, or contradicts the use of a postmark as proof of mailing if the postmark is timely.
The majority claims that a postmark as proof of mailing “has been specifically rejected by the drafters of Rule 373 as an acceptable form of proof of mailing.” 391 Ill. App. 3d at 1002. The definition of “specify” is to name or state explicitly or in detail. Merriam-Webster‘s Collegiate Dictionary 1125 (2000). I submit that there is no specific or explicit exclusion. If it is done, it is done sub silencio. Like Marcel Marceau, the majority has brought poetry to silence.
The majority cites to Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209 (2009), as authority that postmarks are incompetent evidence of mailing. In Secura, there was not one word concerning whether a postmark did or did not exist, whether it was legible or illegible, whether it was timely or untimely. There is little in Secura that supports the majority position, other than to say that a cover letter inside an envelope does not establish the date of mailing and that Rule 12(b)(3) should be followed. To say that Secura is supportive of the majority‘s analysis is to equate silence to the blare of shofars surrounding Jericho.
Furthermore, Secura is not a case that involved a liberty interest as is involved in this case. The majority has interpreted the rule in such a way as to make it impossible for this class of appellants to ef-
Incarcerated criminal defendants are in an unusual situation where the ability to pro se mail a paper is impossible. An inmate is required to plаce outgoing mail in the hands of the staff of the institution having custody of the inmate.4 The majority has not explained or examined the implications of treating this class of appellants in such a harsh manner and diluting the policy of easy access per the mailbox rule. The majority has refused to accept a timely postmark as proof of mailing by requiring a literal application based upon silent “specification.” Unlike the courts’ rationales in Aldridge, Johnson, and Saunders, there is a basis in the rule for my interpretation. A basis that does not inhibit but fosters easy access to this court is readily apparent in the adoption of the original mailbox rule and its evolution to the present day.
Time may be defined as “a nonspatial continuum that is measured in terms of events which succeed one another from past through present to future.” Merriam-Webster‘s Collegiate Dictionary 1231 (2000). Thus, before a postmark can be stamped on an envelope, the envelope must be placed in the mail. If the postmark is timely, then it is immaterial when the envеlope was actually placed in the mail. It defies the purpose of the mailbox rule to conclude that a certificate or affidavit must be the only means to establish a timely mailing. For the majority to conclude that the rule will not entertain such a syllogistic proof is to determine that equivocal silence is an explicit negation of the pro-mailing policy of Rule 12(b)(3) and the mailbox rule. If, as determined by the majority, everything that is not specifically allowed is proscribed because it is “specifically rejected,” then several prior
I submit that the majority‘s interpretation subverts the mailbox rule and will place an undue burden upon staff of the Department of Corrections and any other institution that does not allow pro se access to the USPS. It may come to pass that with this additional burden the statement contained in Aldridge may have even greater impact, and some defendants’ appeals will be perfected because the affiants placed the papers in the mail in a timely fashion and other defendants’ appeals will fail because the affiants did not place the papers in the mail in a timely fashion. Further litigation may ensue by defendants seeking mandamus to require the execution of affidavits and to require timely placement in the mail. It may come to pass that suits will arise seeking damages for failure to act reasonably in fulfilling the duties created by a literal interpretation of Rule 12(b)(3).
I do not believe that the supreme court or the committee that formulated the present version of the rule intended to abrogate the ability to prove mailing by other forms of competent evidence. The fact that the rule has eased the procedure for establishing compliance with the mailbox rule does not constitute an affirmative statement that otherwise competent evidence of mailing is no longer competent. Secura does not make the attachment of a certificate or affidavit of mailing a sine qua non. If it did, thеn a suggested subsequent attempt to comply with the rule would be unavailing. The rule has never specifically said that a postmark is incompetent evidence to prove the date of mailing under any circumstance. The comments never state that a timely postmark is less reliable than a properly executed and attached certificate or affidavit. It is unreasonable to conclude that the supreme court intended the pro-mailing policy to be narrowed and thwarted via silence to preclude proof of mailing by a timely postmark, especially in an instance where the mailer is given limited access to the mail. In People v. Barcik, 357 Ill. App. 3d 1043 (2005), this court determined that it had no jurisdiction over the appeal because no proof of mailing was filed with the defendant‘s notice of appeal. There was no mention of a timely postmark of record to establish the date of mailing, only a dated letter that was attached to the notice of appeal. Our supreme court entered a supervisory order, vacated the dismissal, and remanded for disposition on the merits. People v. Barcik, 217 Ill. 2d 569 (2005). Although not precedential, the supervisory order comports with the policy of ease of access to the appellate court and the pro-mailing policy of the rule. I submit that, in this case, a timely
The purpose of the amendеd rule was to actually expand the pro-mailing policy that existed when the postmark was the most liberal proof of mailing. Frequently, the postmark was legible but established that the mailing was not timely. The committee and the supreme court were aware that often a postmark would not be stamped on the same day the document was placed in a mailbox, sent in a bag with other mail to the post office, or even handed to a postal clerk. Thus, the postmark did not always establish the earliest date that the USPS received the document. Thus, a certificate or an affidavit could supplant the postmark and establish that despite the postmark the document was mailed on an earlier datе and in a timely fashion. A fair reading of the history of the rules and their amendments indicates a consistent broadening of the application of the mailbox rule in order to give the mailer the greatest benefit. The fact that the rule has eased the procedure for establishing compliance with the mailbox rule does not mean that there has been an affirmative statement that otherwise competent proof of mailing is no longer competent.
For the above reasons I believe that, at best, we have jurisdiction. At worst, I believe that we should do as the Third District Appellate Court did in Standard Mutual and obtain a statement from the circuit court clerk as to whether or not the notice of appeal was contained in the envelope that was attached to it, or we should allow defendant the opportunity to obtain an affidavit from the Department of Corrections staff member who placed the paper in the mail.