Postal Meters vs. Postmarks: Illinois Supreme Court Debates Huber v. American Accounting Association
So what’s the difference between a private postal meter, a postage label purchased at a postal service kiosk, and a postmarked stamp? The Illinois Supreme Court debated these issues with much at stake in the closing days of the September term in Huber v. American Accounting Association. The question presented in Huber is what proof of timely filing means that a notice of appeal is timely filed? Our detailed summary of the facts and underlying court decisions in Huber is here.
The plaintiff’s petition to dissolve the 1935 Association, vacate the dissolution of the 2002 Association and then judicially dissolve the 2002 Association was dismissed. The plaintiff appealed, but the defendant raised a preliminary challenge: was the plaintiff’s Notice of Appeal timely filed?
The clerk received the plaintiff’s Notice of Appeal on April 9, thirty-four days after entry of judgment. The envelope in which the Notice of Appeal arrived appeared to show a postmark date of April 3 – twenty-seven days after entry of judgment, and three days before the deadline.
Illinois Supreme Court Rule 373 is a modified mailbox rule: if received after the due date, the time of mailing is deemed to be the time of filing as long as proof of mailing is provided pursuant to Rule 12(b)(3). Rule 12(b)(3) provides that an attorney certificate or affidavit of a non-attorney is required to prove mailing.
The plaintiff’s Notice of Appeal didn’t include a Rule 12(b)(3) certificate or non-attorney affidavit. The Court of Appeal held that Rule 373 required strict compliance, and since the plaintiff hadn’t complied with Rule 12(b)(3), the Notice of Appeal was untimely.
The pro se plaintiff began the oral argument. Justice Theis pointed out that the envelope in which the Notice of Appeal had arrived was in the record. It has a bar code in the upper right hand corner and a notation of “date of sale,” with a note on the side reading “APC.” Justice Theis said that apparently, “APC” was a self-serve kiosk for customers to buy stamps. Justice Theis asked counsel how the postage strip from the kiosk could be called a postmark. Plaintiff responded that the postage had been issued by the post office on the date stamped on it; a customer goes to the post office, pays, gets a postmark label, puts it on the envelope and puts it in the mail. Justice Theis asked plaintiff whether he was saying that the APC strip was a postmark. Plaintiff answered that it was not a postal stamp, but it was a label issued by the postal service. Justice Theis asked whether the APC strip showed the date of sale, and plaintiff said yes. Justice Theis asked whether the APC strip told us anything about when the letter was mailed. Plaintiff answered that the envelope was mailed on the date of sale. Justice Theis pointed out that just because the APC strip was purchased on the third, why couldn’t it have been mailed on the fifth? Plaintiff answered that one could say that about any postal label. Justice Theis suggested that Rule 373 is about bringing clarity to the mailbox rule, so that a person can tell whether or not there is compliance with the date of filing requirement. Plaintiff had argued that the record showed a clear postmark, but Justice Theis wondered whether it really was. Before plaintiff could audibly answer, Justice Kilbride pointed out that he had never experienced anything other than the clerk taking the label and put it on the envelope and tossed it in the bin for processing. He wondered whether we knew of record what happened here. Plaintiff acknowledged that he didn’t have an affidavit from the post office. Justice Thomas responded that the question wasn’t an affidavit from the post office. He suggested it was possible that a person could put the kiosk sticker on an envelope and then wind up taking it home unmailed. But that’s not what typically happens. Plaintiff responded that he had never heard of the postal service accepting a piece of mail to which an APC strip had been affixed already. Justice Theis pointed out that the rule said a certificate of mailing, but there was none here. Plaintiff responded that the record reflected a postal service-issued postmark label. Chief Justice Garman asked whether the case turned on whether the postmark was legible or not. Plaintiff said it did; the rule was adopted to address cases with no postmark or an illegible postmark. Justice Burke asked whether the legibility of the postmark was an appropriate distinction, since legibility isn’t in the control of the party. Plaintiff responded that limiting the rule to postal service marks solved the problem; a private postal meter mark can be manipulated, but a postal mark can’t. The Chief Justice pointed out that if jurisdiction rose or fell on legibility, no one can count on having perfected his or her appeal. Counsel answered that if something in the record establishes the date of mailing, it establishes jurisdiction. Counsel argued that the rule required affidavits which by definition – since they swear to something the serving party hasn’t done yet – aren’t true. Justice Karmeier pointed out that the plaintiff had said at the outset that he left the affidavit in the printer – so he had done what was supposedly physically impossible. Plaintiff argued that because the affidavit swears to acts still in the future, it is by definition swearing to something physically impossible. Counsel argued that the defendant had merely argued that everyone files such affidavits – not that the affidavits are in fact true. Plaintiff argued that the rule invites manipulation, since anyone could sign the affidavit and then put the service copy on his or her desk for a time. What provides better objective evidence of mailing, plaintiff asked, a self-serving affidavit, or a legible postmark? Justice Thomas cited plaintiff’s alternative argument – that Rule 12(c) service is complete four days after mailing, so by definition, service is complete four days after mailing. Counsel answered that the notice was stamped received on the 9th – four days before that was the 5th, which was within the deadline. Thus, the stamp categorically proves that the notice of appeal was filed on the 5th. Justice Burke suggested that the stamp doesn’t prove mailing – what if the envelope doesn’t arrive? Plaintiff responded that that would mean it was mailed the 5th or earlier. Justice Thomas pointed out that some mail turns around in a day or two – it could have been mailed on the 8th. That wasn’t likely when the Notice was mailed from Miami, plaintiff answered. Justice Thomas responded that still, delivery doesn’t necessarily take four days – it could be two or three. Plaintiff answered that given that the rule says four days, one has to assume that’s right. Justice Theis asked whether a certificate of mailing would take care of all these issues. Plaintiff answered that signing an affidavit doesn’t make it true.
Counsel for the defendant followed up. Justice Thomas suggested that while the value of strict compliance was clear, there was something appealing about saying if a party has a valid postmark, why is that not better evidence of the date of filing than an affidavit which is subject to manipulation. Counsel answered that legibility and late affixing of a postmark were two reasons for removing the postmark from the rule in 1981. Admittedly, a government postmark is more reliable than a private meter postmark, but things do happen. Counsel argued that the mailbox rule is not a harsh standard, it’s a relaxing of the ordinary requirement. Counsel was not arguing for strict compliance, he said. There were several examples in the law of substantial compliance, but this case didn’t even reflect that much. Rule 12(b)(3) – a one page affidavit or a certificate of service – wasn’t a high bar. Counsel wondered why, if the plaintiff had left the affidavit in the copy machine, why hadn’t he filed a motion under Rule 303(d) to file late for cause? If counsel didn’t know about the mailbox rule, why didn’t he overnight the notice of appeal? Counsel suggested that like a private postal meter label, the kiosk label merely proves purchase of the postage, not date of mailing. Justice Kilbride asked what the notation under the address and to the left of the received mark in the record was. Counsel answered a zip code. Justice Karmeier asked whether the purchaser typically gets the envelope at a kiosk and takes it to a kiosk. Counsel agreed that was right. So we have no knowledge as to whether the envelope was mailed the same day, Justice Karmeier asked. That’s right, counsel answered. The Chief Justice asked counsel to respond to plaintiff’s argument that compliance with the affidavit requirement was impossible. Counsel responded that the affidavit was admittedly forward-looking, but it had been used in courts for years. Parties place themselves at serious risk by giving false affidavits. The difference between buying postage at the desk and at a self-serve kiosk is that when postage is bought at the desk, postal service rules bar employees from returning an envelope to the customer unmailed. Counsel concluded by again insisting that the mailbox rule is itself a relaxation of the ordinary rule. The plaintiff’s argument amounted to suggesting that the savings clause needed a savings clause. The Notice of Appeal here was four days late, so the mailbox rule was not triggered.
In rebuttal, the plaintiff explained that the affidavit wasn’t late-filed because he didn’t know it wasn’t included until the motion to dismiss. It was easy to lie in an affidavit, counsel argued again – providing an affidavit didn’t make it true. Nothing in the argument proved that the notice of appeal hadn’t been mailed on the day the mailing strip was issued – there was no way the date of purchase and date of mailing weren’t the same. Justice Thomas suggested that there was a way that the package wasn’t mailed the date of purchase. Counsel answered that that was just as possible as saying something in an affidavit and then not mailing it. Justice Theis suggested that the case was about the best evidence of mailing. The notice of appeal in the record didn’t have a cancellation date on it. Plaintiff responded that it had the date of issue by the postal service, and that’s sufficient to prove the date of mailing.Image courtesy of Flickr by J.D. Thomas.