Sellers v. Employment Security Commission
760 P.2d 394
Wyo.
1988
Check Treatment

*1 handcuffed, found he had been he

under arrest. future,

It well be in the our

attorneys give judges should additional

attention to the definition of an arrest.

Probably, they it beyond is best that look Riverton, City v.

Rodarte Wyo., (1976), persuasive P.2d 1245 and consider

authority jurisdictions. from other

Gary SELLERS, (Petitioner),

EMPLOYMENT SECURITY COMMIS WYOMING, Appellee

SION OF

(Respondent).

No. 88-35.

Supreme Wyoming. Court

Aug. Drell, Casper, appellant.

David A. Hibbler, Gen., Sp. Atty. William G. Asst. for appellee. BROWN, C.J., THOMAS,

Before CARDINE, MACY, JJ. URBIGKIT *2 30, 1987, filing as the time for MACY, November Justice. petition begins a to run on the date that Security Employment Commis- Appellee mailed, the notice is and that the Court (ESC) applica- denied the Wyoming sion of jurisdiction therefore without to consider unem- appellant Gary Sellers for tion of petition. subsequent Appellant’s ployment benefits. right judicial The review of ad in the district court was petition for review entirely statutory, ministrative decisions is filed, untimely and this being dismissed as agency actions are not reviewable ab the issue appeal followed. Resolution of statutory authority. Holding’s Little sent requires presented in this case that we County America v. Board Commis of and rules applicable statutes examine sioners Laramie 670 P.2d 699 of proper comput- to determine the method (Wyo.1983); Keslar v. Police Civil Service filing appeal ing time limits on a notice Commission, City Springs, Rock no- from an administrative decision where addition, (Wyo.1983). P.2d 937 In par- tice of the decision is filing petition jurisdiction of a for review is by mail. ties Crook, Wolfley (Wyo. al. 695 P.2d remand. We reverse and 1985); Department Revenue and Taxa Irvine, tion v. (Wyo.1979). describes the issue in this man- 589 P.2d ner: Statutory authority judicial review of THE APPELLANT TIME- WHETHER 27-3-407(a), in ESC is found W.S. decisions RE- LY FILED HIS PETITION FOR provides pertinent part: in which WITH THE DISTRICT COURT VIEW Any person aggrieved adversely or af- OF THE SEVENTH JUDICIAL DIS- by fected a final decision under this act THE TRICT TO PROPERLY INVOKE judicial by filing obtain review a THE

JURISDICTION OF COURT. petition the district court for review with jurisdiction. by Review the court deputy, by An initial determination ESC provided by Wyoming shall be as redetermination, ap- and a concluded that Act 16-3- Administrative Procedure [§§ disqualified receiving pellant was ben- ** *. 16-3-115] voluntarily he had left his efits because addition, 16-3-114(a) Wyo- W.S. good employment most recent without ming Administrative Procedure Act estab- employment. cause attributable to that lishes, general, right to review of Appellant filed an administrative or actions. That section decisions and, hearing, hearing after a an ESC exam- states: deputy’s Appel- iner affirmed the decision. requirement that admin- Subject to the pursued his administrative lant further and in istrative remedies be exhausted remedy by appealing to the commissioners any statutory . or common- the absence of of the ESC. The commissioners affirmed precluding limiting judi- provision law or meeting decision at a held the examiner’s review, any person aggrieved or ad- cial 30, 1987, 26, 1987. On on October October final deci- versely affected fact a the decision of the commissioners was agency in contested or sion of an Ap- appellant by mailed to certified mail. inaction, agency action or or by other pellant letter of no- received the certified any person affected in fact a rule tice on November agency, judi- entitled to adopted 2, 1987, appellant filed a On December in the district court for the cial review district court. petition for review with the action county in which the administrative By order entered December taken, in which or inaction was or stating petition, district court dismissed administra- property real affected grounds therefor: located, if or inaction is or no tive action peti- THAT the THE COURT FINDS involved, in district property is real 30,1987, that mailed on October party tion was county court for the Wyoming Rules adversely affected aggrieved the time allowed or Procedure, inaction resides Rule action or Appellate administrative place of business. principal its expired on or has petition for review procedure The to be in the to file his for review. Our followed proceeding therefore, inquiry, district court initial is whether the before appeal period shall be in accordance with rules here- runs from the date the notice adopted is sent mail opposed to the date it is tofore hereinafter Wyoming supreme received. Both agree court. seem to is measured from the time the added.) (Emphasis notice agree that, pursu- was mailed. We *3 governs procedural 12 W.R.A.P. the as- 12.04, ant to W.R.A.P. the appeal period is pects of of review administrative decisions. triggered sending by the of certified notice County Board Commissioners Teton of of general the mail. The rule is County County Services, v. Teton Youth Merrill, in 1 found M. Notice 633 at 715- § Inc., (Wyo.1982); 652 P.2d 400 W.R.A.P. (1952), 16 wherein it is stated: provides: 12.03. W.R.A.P. 12.01 authority springs Whether the from To the judicial extent that review of custom, common law or from contract or by administrative action a district court by from notice, direction from rule of available, any person aggrieved who is of tribunal, court or administrative or adversely or in affected fact a final sovereign legisla- will of the case, decision in agency an a contested ture, necessary it is not that a notifica- aggrieved adversely or who is or affect- tion to authorized be made mail be by any ed in agency fact other action or received. Its effectiveness dates from inaction, or adversely who is affected in mailing. the time of by a adopted by agency, fact rule [an] (Emphasis added.) Call Alexander provided obtain such review in 344, Coal 8 Company, App.3d Ohio this rule. (1983), said, N.E.2d the court W.R.A.P. 12.04 establishes the time fil- for specifies person “Where a statute that a review, ing petition providing a for in rele- shall particular means, be notified a part: vant such mail, as certified registered or notice In a contested or in a noncontest- deposited effective when in the mails.” places case ed where a statute a time States, See also Crow v. United 203 F.2d appeal, limit on for review Cir.1953); (9th Elliott v. Board of (30) shall be filed thirty within after Equalization Adjustment of Jeffer written, notice to all certified son (Ala.Civ.App. So.2d 602 * * agency decision *. final 1984); Geldreich, Caldwell v. 137 Cal.App. added.) (Emphasis Finally, W.S. 16-3-110 (1955); 2d 289 P.2d 832 Fed.R.Civ.P. of Wyoming Administrative Procedure 5(b); Am.Jur.2d, (1971). and 58 Notice 27§ prescribes Act procedure giving for Having determined pe that time agency notice a final decision in a con- filing riod appeal pursuant to W.R. pertinent part, tested case. In that section A.P. 12.04 is measured from the date of provides: mailing rather receipt, than date of we Parties shall be notified personally either 14.02,1 next look to pre W.R.A.P. which or decision or A order. scribes method for computing time.2 copy of the decision and order shall be 14.02, W.R.A.P. pro amended or delivered mailed par- forthwith to each part: vides in relevant ty or his attorney to of record. In computing any period of pre- added.) (Emphasis rules, or scribed allowed these or by Thus, pursuant to court, the above stat act, order of day event rules, appellant thirty days utes had or designated default from which the pe- after certified notice of the begins decision riod of time run shall not be Wyoming Appellate specified The Rules of computing Procedure 2. The method tíme un- 14.02, entirety, including ap- their plicable W.R.A.P. virtually der W.R.A.P. 14.02 identical appeals agencies from administrative 6(a), 43(a). W.R.C.P. and W.R.Cr.P. provides: virtue of W.R.A.P. appeals All to the district court and Su- preme governed by Court shall be these rules. brief, day included. The last so paper notice or other is served included, upon shall unless it is a him by delivery be mail or legal clerk, (3) Saturday, Sunday, holiday, or a shall be added to the or, prescribed period. when the act to be done is the paper, day of a on which weather or W.R.A.P. 14.03 has similar counterparts in other conditions have made the office of 6(e); 43(d); W.R.C.P. W.R.Cr.P. Fed.R.Civ. inaccessible, clerk of the court in which 6(e); 45(e); P. Fed.R.Crim.P. and Fed.R. event runs until the end of the 26(c). App.P. In 4A Wright C. A.& day next not one of the afore- Federal Practice and Procedure: 2d Civil days. mentioned When the (1987), authors, 1171 at 514-15 § prescribed is less allowed than 6(e), reference to Fed.R.Civ.P. describe the (11) days, Saturdays, eleven intermediate rationale for the extension: Sundays, legal holidays shall be ex- clearly protect is intended to [T]he computation. cluded *4 parties who are served notice foregoing, On the of the appeal basis the suffering systematic diminution period in this case was initiated the respond of their time to ap the mailing of plication 5(b), the decision notice on October of Rule provides 30,1987. 14.02, Pursuant to W.R.A.P. complete upon that service is mailing, not day date is not included. The receipt; first the the days provid additional three count, therefore, 6(e) October with the ed party being Rule served day falling thirtieth represent on November 29. No- a reasonable transmission 29, 1987, so, time, Sunday, vember was a accord- compromise and a fair between the ingly, period thirty-day expired on Mon- measuring strictly harshness of from the day, finding November 30. This mailing was the date of and the indefiniteness of court, the district and it attempting was correct as far to measure from the date of as it went. receipt, in many cases would be unverifiable.[3] court, however,

The district failed to con- operation sider the of W.R.A.P. Appellant clearly was entitled to the which, circumstances, enlarges certain three-day extension in this case. Our prescribed time to do an act after ser- however, analysis, does not end here. We vice of notice when the notice is sent additionally must determine whether the mail. W.R.A.P. 14.03 states: days extra three are to be added to the party right Whenever original period has the or is they whether are to be required to do some act or separate period. Although take some treated as a not proceedings prescribed here, period dispositive importance within a of this dis brief, from or readily If, after the service of a no- tinction can be seen. for exam him, paper upon tice or other ple, day and the the thirtieth should fall on a Satur- courts, permitted obtaining 3. It is clear in the federal as in extend the time for re- Wyoming, three-day applies mail extension view of administrative decisions when the de- only mailed, period doing theory where the time for an act cision has on been that the statutory rims from the time of service of notice. The time elements for review are manda- inapplicable tory extension is to a direct jurisdictional. and appeal Administration, from the district court where the time is See also Carr v. Veterans entry judg- (5th Cir.1975); calculated from the date of of the Whipp Weinberger, F.2d 1355 v. ment, regardless of whether (6th Cir.1974); are noti- 505 F.2d 800 and Lauzon Savage fied of the decision mail. v. Cache Shipping Company, F.Supp. Strachan Association, (10th Valley Dairy 737 F.2d 887 (S.D.Tex.), (5th Cir.1985). aff'd 782 F.2d 1217 Cir.1984); Lashley Company, v. Ford Motor case, however, period In the instant the time for (5th Cir.1975). F.2d 749 (W.R.A.P. 12.04) appeal set court rule statute, addition, application rather than so system, under the federal operate W.R.A.P. 14.03 mail extension does not period time for review of decisions is statutorily prescribed generally enabling legislation to extend or limit controlled Thus, jurisdiction agencies. Wright district court. See W.R.C.P. of the various in 4A C. Thus, general applied by supra, 82. the feder & A. at it is said: rule, inapplicable general service-by-mail As a al courts to instant case. See exten- 6(e) provided applies only Tippeca sion in Rule to Lincoln v. Board Commissioners civil Thus, (Ind.App.1987). actions. the rule has been held not to noe 510 N.E.2d 716 day, a notice of bilitation v. National Labor Relations day the final Board, rules, appeal, by computation (3d Cir.1982). would 669 F.2d 138 following Monday. fall on the W.R.A.P. Having examined rules in circumstances, if the 14.02. Under these authorities, terpretive we return to the days extra are original three added to the apply facts of this case and the rules as thirty-third day period, the fall on would previously ascertained. We have deter Tuesday, resulting gain day ain net one appellant’s original thirty days mined that If, if the notice is by mail. how- appeal expired which to file an on Mon ever, days the extra are treated as a day, Appellant November was period separate computed separately, days provided by entitled to the extra three expire Monday, the initial would on 14.03, however, and, pursuant W.R.A.P. days and the addition of three ex- would holding supra, our this Thursday. tend the until separately original period. from the Con question This complicat- becomes further sequently, appellant Thursday, had until ed when considered peri- relation to time 3, 1987, to petition December file his ods of less than days, eleven which case petition review.4 filed his on De intervening Saturdays, all Sundays, and le- 2, 1987, cember and therefore his notice gal holidays are excluded from the count. timely. It was error for the example, W.R.A.P. 14.02. As an if the district court dismiss the on the original is ten if the ground that it was not filed. period, extra three added this REVERSED AND REMANDED. *5 period days, then would exceed ten intervening holidays weekends and J., THOMAS, a specially filed would be included in the count. An incon- concurring opinion. sistency thus original arises. When the THOMAS, Justice, specially period days is ten is and the notice served concurring. personally, recipient benefits from at I agree with the result this case be- least days four additional because of the cause, computation, under rule Sell- weekends, giving exclusion him total ers’ notice of filed. In If, days. however, of at least fourteen my judgment, this means that the discus- given by notice is mail if the extra sion majority whether the three- days original period, added day period original is be added to the excluded, the weekends are not and the period separate period or be treated as a recipient may only days have thirteen dictum. It is dictum in I join, which cannot mailing respond. date which to however. I believe when there a obviously This pur- inconsistent with involved, thirty-day period days the three mailing pose Wright of the extension. simply original should be peri- added treating Miller advocate the two situations od, making thirty-three days. a total i.e., differently; original period where the Conversely, if the of time involved days, compute is less than eleven the extra less, days or ten I would follow rule days separately; origi- and where the espoused Miller, Wright 4A C. A.& days more, compute nal is eleven Federal Practice and Procedure: Civil 2d part original peri- the extra as of the (1987). long 1171 at 516-521 So as attor- § Wright od. & supra, 4A C. A. at neys is, know I per- what the do not 516-21. We view such diverse treatment structuring ceive as complexity. this undue however, only adding confusion, further and we therefore hold

mailing computed extension sepa- should be

rately original regardless from the period, length original

involved. See Kessler Institute Reha- method, timely. Using thirty-third day this even if the additional three this part original Wednesday, were would have fallen on December period, appellant's appeal day appellant have would been filed his for review.