State v. Chapman

388

Argued and submitted September 15; decision and order of dismissal of Court

of Appeals reversed, case remanded to Court of Appeals for further proceedings

December 31, 2020

STATE OF OREGON,

Respondent on Review,

v.

ALLISON CHAPMAN,

aka Alison Chapman,

aka Allison Kate Chapman,

Petitioner on Review.

(CC 18VI72579) (CA A168274) (SC S067066)

478 P3d 960

Intending to appeal a general judgment, defendant dispatched her notice of

appeal by first-class mail on the last day of the appeals period. When the notice

arrived at the court several days later, the Appellate Commissioner concluded

that it was untimely and issued an order dismissing the appeal. Defendant

sought reconsideration, arguing that her notice must be deemed filed on the date

that it was mailed. Defendant relied on ORS 19.260(1)(a)(B), which provides that

the date of filing a notice of appeal is its mailing or dispatch date if the notice

is sent by a “class of delivery calculated to achieve delivery within three calen-

dar days.” On reconsideration, the Court of Appeals adhered to the Appellate

Commissioner’s dismissal of the appeal, holding that first-class mail does not

fall within the terms of ORS 19.260(1)(a)(B), regardless of the circumstances.

Defendant petitioned for review, arguing that the Court of Appeals had misin-

terpreted the statute. Held: Under the circumstances in which defendant mailed

her notice of appeal, first-class mail constituted a “class of delivery calculated

to achieve delivery within three calendar days” within the meaning of ORS

19.260(1)(a)(B); therefore, the notice was timely, having been filed on the date

that it was mailed. Defendant also satisfied proof-of-mailing-date requirements

in ORS 19.260(1)(a)(B) and (1)(b).

The decision and order of dismissal of the Court of Appeals are reversed. The

case is remanded to the Court of Appeals for further proceedings.

En Banc

On review from the Court of Appeals.*

Nathan R. Morales, Perkins Coie LLP, Portland, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs was Gregory J. Mina.

______________

* Appeal from Coos County Circuit Court, Brett A. Pruess, Judge. 298 Or

App 603, 448 P3d 721 (2019).

Cite as 367 Or 388 (2020) 389

Julia Glick, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

James S. Coon, Thomas, Coon, Newton & Frost, Portland,

and Elizabeth C. Savage, Portland, filed the brief for amicus

curiae Oregon Trial Lawyers Association.

Rachael A. Federico and Rachel M. Hungerford, Legal Aid

Services of Oregon, Salem, filed the brief for amicus curiae

Legal Aid Services of Oregon.

NAKAMOTO, J.

The decision and order of dismissal of the Court of

Appeals are reversed. The case is remanded to the Court of

Appeals for further proceedings.

390 State v. Chapman

NAKAMOTO, J.

In Oregon, an appellate court lacks jurisdiction to

hear an appeal if the appellant failed to file a notice of appeal

within the time period provided by statute. ORS 19.270(2)(b).

Filing a notice of appeal may be accomplished by mail or

commercial delivery, and any notice received within the

statutory period is considered timely. But, in certain circum-

stances, the date of mailing or dispatch of a notice of appeal

is deemed to be its date of filing, regardless of the date of its

receipt by the appellate court. One of those circumstances is

set out in ORS 19.260(1)(a)(B), which provides that the date

of filing a notice of appeal is the date of mailing or dispatch

if the notice is mailed or dispatched “by a class of delivery

calculated to achieve delivery within three calendar days”

and the party filing notice has proof of the mailing or dis-

patch date.

The issue in the present case is whether ordinary

first-class mail is, or can be, a “class of delivery calculated

to achieve delivery within three calendar days.” The Court

of Appeals majority concluded that first-class mail can

in no circumstances be such a class of delivery and that,

therefore, a notice of appeal that had been dispatched by

first-class mail on the last day of the appeals period and

received by the court two days later was untimely—

requiring dismissal of the underlying appeal. State v.

Chapman, 298 Or App 603, 448 P3d 771 (2019) (en banc).

We reject the majority’s analysis and conclusion and also

reject an alternative theory for dismissing the appeal that

was raised in a concurring opinion—a supposed failure to

comply with proof-of-mailing-date requirements in ORS

19.260(1)(a)(B) and (1)(b). Accordingly, we reverse the Court

of Appeals’ dismissal of the appeal and remand to that court

for further proceedings.

I. BACKGROUND

The facts that are relevant to this jurisdictional

issue are not in dispute. On June 8, 2018, a Coos County

Circuit Court judge entered a general judgment convicting

defendant of driving while suspended, ORS 811.175, and

failure to register a vehicle, ORS 803.300. Wishing to appeal

from that judgment and acting without legal representation,

Cite as 367 Or 388 (2020) 391

defendant sent a notice of appeal to the Appellate Court

Administrator by first-class mail. Defendant certified

that the “method of filing” she had used for her notice was

“United States Postal Service, ordinary first class mail.”

A postage validation imprint (PVI) label1 on the envelope

showed that petitioner had submitted her notice of appeal

to the United States Post Office (USPS) for mailing on

Monday, July 9, 2018, the last day of the applicable appeals

period.2

The Appellate Court Administrator received defen-

dant’s notice of appeal two days later, on Wednesday,

July 11, 2018. The notice was forwarded to the Appellate

Commissioner, who concluded that it was untimely and

issued an order dismissing defendant’s appeal on that

ground.

Defendant sought reconsideration by the Court of

Appeals, arguing that first-class mail was a “class of deliv-

ery calculated to achieve delivery within three calendar

days,” meaning that, under ORS 19.260(1)(a)(B), the date

of filing related back to the date of mailing, which in her

case was July 9, 2018—the last day of the appeals period.

In support of her argument, defendant submitted mate-

rial from the United States Postal Service (USPS) public

website showing a delivery time of “1-3 business days” for

first-class mail. See https://www.usps.com/ship/first-class-

mail.htm (accessed Dec 18, 2020).

On reconsideration, a divided Court of Appeals,

sitting en banc, adhered to the Appellate Commissioner’s

dismissal of the appeal. Chapman, 298 Or App at 614. A

1

A PVI label is applied to a piece of mail by personnel at the post office when

postage has been paid at the counter to mail that item. The item is retained in

USPS custody and is not handed back to the customer. The date printed on the

PVI label is the date of the mailing.

2

Under ORS 19.255(1), a notice of appeal must be filed “within 30 days after

the judgment appealed from is entered in the register.” In this case, that 30-day

period would have ended on July 8, 2018. However, July 8, 2018, was a Sunday,

a day on which the appellate courts are closed. Given that circumstance, the

appeals period ran “until the end of the next day the court [was] open,” i.e., July 9,

2018. See ORAP 1.25 (regarding computation of prescribed time periods); accord

ORS 174.120 (excluding last day of period for compliance with a statutory time

limitation if it is a Saturday or legal holiday); ORS 187.010(1)(a) (Sundays are

legal holidays).

392 State v. Chapman

majority of the Court of Appeals concluded that the class of

delivery by which defendant sent the notice, i.e., first-class

mail, was not one that was “calculated to achieve delivery

within three calendar days.” Pointing to the online USPS

publication on which defendant had relied, the majority

declared that, instead, first-class mail was calculated,

i.e., “planned or contrived,” by the USPS, to achieve deliv-

ery within three business days—an entirely different time

period. Id. at 607-11. Although the majority acknowledged

that, in some circumstances, a delivery time of three busi-

ness days would not differ from a delivery time of three

calendar days, it concluded that the existence of such cir-

cumstantial possibilities was irrelevant to the statute’s

application. That was so, in the majority’s view, because

the statute’s use of the term “class of delivery” estab-

lished that the legislature intended it to apply only when

the would-be appellant chose a class of delivery that was

designed, as a whole, to achieve delivery within three cal-

endar days. Id. at 611-14. And because first-class mail is

not designed, as a whole, to achieve delivery in three cal-

endar days, but rather, in three business days, an appel-

lant who chooses to send a notice of appeal by first-class

mail is not entitled to the relation-back benefit that ORS

19.260(1)(a)(B) provides. Id. at 614. The Court of Appeals

majority also relied on evidence in the statutory and legis-

lative history of ORS 19.260(1)(a)(B) from which it inferred

that the legislature intended to exclude ordinary first-

class mail from the statute’s sphere of application. Id. at

608-11.

In a concurring opinion, one Court of Appeals judge

rejected the majority’s interpretation of the statute. She

understood ORS 19.260(1)(a)(B) to require only that would-be

appellants use a class of delivery calculated to achieve deliv-

ery of their own notice of appeal within three calendar days

and concluded that, in the circumstances, defendant’s use of

first-class mail had satisfied that requirement. Chapman,

298 Or App at 614-22 (Aoyagi, J., concurring).3

3

The concurrence also suggested that the majority’s statutory and legis-

lative history arguments read too much into the fact that the legislature did

not directly and expressly address first-class mail when it enacted ORS 19.260

(1)(a)(B). Chapman, 298 Or App at 615-16 (Aoyagi, J., concurring).

Cite as 367 Or 388 (2020) 393

However, the concurring judge agreed with the

majority’s result because, in her view, defendant had not sat-

isfied other requirements set out in subparagraph (1)(a)(B)

and paragraph (1)(b) of the statute—respectively, that “the

party filing the notice ha[ve] proof from the United States

Postal Service * * * of the mailing or dispatch date” and “cer-

tif[y] * * * and file[ ] thereafter” proof of the date of mailing

or dispatch with the court to which the appeal is taken. Id.

The concurring judge rejected defendant’s contention that

the dated PVI label on the envelope in which the notice had

been sent—which, in accordance with ordinary practice,

had been added to the case file—had satisfied those require-

ments. Id.

Two judges dissented. The dissenting judges would

have held that defendant had satisfied both the “class of

delivery” and proof-of-mailing-date requirements of ORS

19.260(1). 298 Or App at 622-29 (Egan, C. J., dissenting).

Defendant petitioned for review by this court, and

we allowed the petition to consider whether the Court of

Appeals majority, the concurrence, or both had erred in their

analyses of the “class of delivery” and proof-of-mailing-date

requirements in ORS 19.260(1). Two organizations, Oregon

Trial Lawyers Association (OTLA) and Legal Aid Services of

Oregon, moved to appear as amicus curiae, and we granted

their motions.

II. THE STATUTE

Although the issues presented in this case focus on

two specific provisions within ORS 19.260—subparagraph

(1)(a)(B) and paragraph (1)(b)—the parties’ contextual argu-

ments rely heavily on other provisions in the statute. To

make those arguments more immediately accessible, we

begin by setting out the first two subsections of ORS 19.260

in their entirety. By way of introduction, we note that sub-

section (1) sets out the circumstances in which the date of

filing a notice of appeal in the relevant appellate court will

relate back to the date of its mailing or dispatch (assuming

that the notice is sent by mail or commercial delivery ser-

vice). Subsection (2), which is not directly at issue here, sets

out the means by which service of a notice of appeal on other

394 State v. Chapman

parties may be accomplished by mail or commercial delivery

and specifies that, when such means are used, the date of

service is the date of mailing or dispatch. Thus, ORS 19.260

provides, in part:

“(1)(a) Filing a notice of appeal in the Court of Appeals

or the Supreme Court may be accomplished by mail or deliv-

ery. Regardless of the date of actual receipt by the court to

which the appeal is taken, the date of filing the notice is the

date of mailing or dispatch for delivery, if the notice is:

“(A) Mailed by registered or certified mail and the

party filing the notice has proof from the United States

Postal Service of the mailing date; or

“(B) Mailed or dispatched via the United States Postal

Service or a commercial delivery service by a class of deliv-

ery calculated to achieve delivery within three calendar days,

and the party filing the notice has proof from the United

States Postal Service or the commercial delivery service of

the mailing or dispatch date.

“(b) Proof of the date of mailing or dispatch under this

subsection must be certified by the party filing the notice and

filed thereafter with the court to which the appeal is taken.

Any record of mailing or dispatch from the United States

Postal Service or the commercial delivery service showing

the date that the party initiated mailing or dispatch is suf-

ficient proof of the date of mailing or dispatch. If the notice

is received by the court on or before the date by which the

notice is required to be filed, the party filing the notice is

not required to file proof of mailing or dispatch.

“(2)(a) Service of notice of appeal on a party, transcript

coordinator or the trial court administrator, or service of

a petition for judicial review on a party or administrative

agency may be accomplished by:

“(A) First class, registered or certified mail; or

“(B) Mail or dispatch for delivery via the United States

Postal Service or a commercial delivery service by a class of

delivery calculated to achieve delivery within three calen-

dar days.

“(b) The date of serving the notice under this subsec-

tion is the date of mailing or dispatch. The party filing the

notice must certify the date and method of service.”

(Emphases added.)

Cite as 367 Or 388 (2020) 395

III. ARGUMENTS AND ANALYSIS

Defendant argues that both the Court of Appeals

majority and the concurrence erred in their interpretations

of ORS 19.260(1), albeit in different ways. She first chal-

lenges the majority’s conclusion that, insofar as she sent her

notice of appeal by first-class mail, she did not use a “class

of delivery calculated to achieve delivery within three cal-

endar days” and therefore cannot claim, under ORS 19.260

(1)(a)(B), to have filed her notice of appeal on the day that

she mailed it.4 She also challenges the concurrence’s view

that she did not have proof of the date that she mailed her

notice of appeal and that she accordingly failed to satisfy

the proof requirements in ORS 19.260(1)(a)(B) and (1)(b).

A. Class of Delivery

We first address what it means for “the notice” to

be dispatched “by a class of delivery calculated to achieve

delivery within three calendar days.” ORS 19.260(1)(a)(B).

The parties and amici all acknowledge that the question

whether defendant’s use of first-class mail comported with

the “class of delivery” requirement in ORS 19.260(1)(a)(B) is

one of statutory interpretation, to be resolved by examining

the text and context of the statute, and any helpful legisla-

tive history, as set out in State v. Gaines, 346 Or 160, 171-73,

206 P3d 1042 (2009).

1. Text

On a purely textual level, the parties appear to

agree about the meaning of the terms “class of delivery” and

“three calendar days”—that is, the former refers to a cate-

gory or method of shipment provided by the USPS or other

mailing service and the latter refers to three consecutive

days on the calendar and is distinct from “three business

days.”5 There is significant disagreement, however, about

the adjectival phrase “calculated to achieve delivery within

4

Defendant acknowledges that the relation-back benefit offered by ORS

19.260(1)(a)(B) depends on whether she sent her notice of appeal by a class of

delivery calculated to achieve delivery within three calendar days, and that it is

irrelevant that her notice of appeal actually was delivered to the Court of Appeals

within three calendar days.

5

The parties in this case had no need to address what constitutes a “business

day” because defendant mailed her notice of appeal on a Monday and the delivery

period was uninterrupted by a weekend or holiday.

396 State v. Chapman

three calendar days.” The parties dispute (1) the meaning of

the word “calculated” and (2) whether the phrase concerns

the notice of appeal at issue, as dispatched using the chosen

class of delivery, or all notices of appeal dispatched using

that class of delivery.

With regard to the first disputed point, the Court of

Appeals majority drew what it deemed to be the most rele-

vant definition of “calculated” from the dictionary—“planned

or contrived so as to accomplish a purpose.” Chapman, 298

Or App at 606 (citing Webster’s Third New Int’l Dictionary

315 (unabridged ed 2002)). Noting that “calculated” appears

in the passive voice, the majority asserted that the phrase

“class of delivery calculated to achieve delivery within three

calendar days” necessarily means that it is the USPS or

other delivery service that plans or calculates the delivery

times for the classes of delivery it offers, “because it is the

delivery service that organizes itself to accomplish deliver-

ies within one estimated time frame or another.” Id. at 606.

Applying that meaning, the majority concluded that first-

class mail is not a class of delivery calculated to achieve

delivery within three calendar days, given that, on its public

website, the USPS describes the delivery time for first-class

mail as “1-3 business days.”

Defendant argues, however, that, in the context

of ORS 19.260(1)(a)(B), “calculated” simply means “likely.”

And, defendant asserts, although the USPS advertises a

delivery time of “1-3 business days” for first-class mail on

its website, as a practical matter, it is “likely,” i.e., more

probable than not, that items mailed by first-class mail will

arrive within three calendar days, given that the “business

day” qualification would only be relevant for items mailed

before a weekend or holiday and that, under the USPS stan-

dard, at least some items will achieve delivery within one or

two business days. Defendant thus concludes that first-class

mail categorically qualifies as a “class of delivery calculated

to achieve delivery within three calendar days” and that her

use of first-class mail to send her notice of appeal made ORS

19.260(1)(a)(B) applicable.

Beyond the evident weaknesses in defendant’s prob-

ability analysis, we are not persuaded by her underlying

contention that, in this context, “calculated” means merely

Cite as 367 Or 388 (2020) 397

“likely,” in the sense of “more probable than not.” Although

“likely” is, indeed, a meaning that appears among the dic-

tionary definitions of “calculated,” it is an outlier among

those definitions. We note, in that regard, that Webster’s

Third New International Dictionary defines “calculated,”

when used as an adjective, to mean:

“1 a : worked out by calculation : computed mathemat-

ically <~ tables> b : ascertained or estimated by calcula-

tion <the ~ velocity of a bullet> c : engaged in, undertaken,

or displayed after reckoning or estimating the statistical

probability of success or failure – see calculated risk

2 : planned or contrived so as to accomplish a purpose or

achieve an effect : thought out in advance : deliberately

planned <his ways are not ~; he considers himself as hon-

est as noonday –G. W. Brace> <that political justice is

attainable only by a nicely ~ system of checks and balances

–V. L. Parrington> 3 : brought about or brought into exis-

tence as a consequence of deliberate intent or planning

4 : likely – used with complementary infinitive <a circum-

stance ~ to excite strong suspicion –W. E. Gladstone> <not

~ to be soft on such a subject –A. H. Vandenberg †1951>

5 : suited, fitted, adapted : of such a nature as – used with

a complementary infinitive <she was perfectly ~ to convince

the sisters that times had worsened –Arnold Bennett>.”

Webster’s at 315 (unabridged ed 2002). The first three mean-

ings are firmly rooted in notions of deliberation or planning,

while the last—“suited, fitted, adapted”—conveys at least

a connotation of purposeful design. Only the meaning that

defendant contends for—“likely”—is entirely divorced from

the notion of active and purpose-driven analysis that inhere

in the word’s root verb—“calculate.”6

6

“Calculate” is defined to mean:

“1 a : to ascertain or determine by mathematical processes esp. of some intri-

cacy <~ atomic weights> b : to reckon by exercise of practical judgment rather

than by strict mathematical process : estimate c : to solve the significance

of : probe the meaning of : figure out : interpret <trying to ~ his expres-

sion –Hugh MacLennan> 2 : to plan the nature of beforehand : think out

: frame 3 : to design, prepare, or adapt by forethought or careful plan : fit or

prepare by appropriate means—used chiefly as past part. with complemen-

tary infinitive <calculated to succeed> 4 : chiefly North a : to judge to be true

or probable on the basis of the evidence at hand : suppose, believe, think

b : intend, purpose, plan.”

Webster’s at 315.

398 State v. Chapman

Defendant contends that we should presume that

“likely” is the meaning that the legislature intended because

it is the one that is most consistent with the grammatical con-

struction of ORS 19.260(1)(a)(B). Defendant notes that the

word “calculated” is used in ORS 19.260(1)(a)(B) with a com-

plementary infinitive—“to achieve”—and that “likely” is one

of only two meanings in the quoted definition that expressly

refer to the use of a complementary infinitive. Defendant also

contends that the fact that the provision uses the passive

voice and does not name an actor suggests that the legisla-

ture did not intend to require any actual act of calculation—

leaving “likely” as the most apposite meaning.

But, as the state points out, the fact that a dictio-

nary notes that the “likely” meaning of “calculated” typi-

cally is used with a complementary infinitive does not mean

that the word’s other meanings are not used with a comple-

mentary infinitive at times. And neither does the passive

construction indicate an intent to bypass the notion of active

“calculat[ion]” by some person or entity. In fact, in a variety of

statutes that use the passive “calculated” with a complemen-

tary infinitive, the word is either evidently used or has been

deemed by this court to be used to convey active evaluation

and intention. See, e.g., ORS 192.324(4)(a) (when respond-

ing to public record requests, the “public body may establish

fees reasonably calculated to reimburse it for its actual cost

in making personal information available”); ORS 802.183(1)

(Oregon Department of Transportation may set fees for pro-

viding personal information from its records that are “rea-

sonably calculated to reimburse the agency for the actual

cost of providing the information”); Moody v. Hurricane

Creek Lumber Co., 290 Or 729, 736, 625 P2d 1306 (1981)

(stating that, in the phrase “assists or directs in the procur-

ing of prospects calculated to result in the sale, exchange,

lease or rental of real estate” in former ORS 696.010(9)(j),

“ ‘calculated to result’ requires some knowledge or intent on

the part of the person ‘assisting or directing’ that his con-

duct will ‘result in the sale, exchange, leasing or rental of

real estate’ ”). And even when the “likelihood” of a specified

result seems to be part of what the legislature intended to

convey by using the “calculated to” wording, it is not the

free-floating, greater-than-fifty-percent probability that

Cite as 367 Or 388 (2020) 399

defendant seems to contend for but rather a more definitive

and purposeful estimation, as determined from the stand-

point of a person who is charged with achieving or intends

to achieve that result.7

Thus, although we cannot completely dismiss the

possibility that the legislature intended the word “calcu-

lated” in ORS 19.260(1)(a)(B) to mean simply “likely,” we are

far more inclined to think it chose the word to convey (as it

usually does) some sort of purposeful and considered plan or

estimation. In either case, of course, the phrase “calculated

to achieve delivery within three business days” modifies

the term that precedes it—“class of delivery.” If the term

“calculated” has the meaning that we think most proba-

ble, then ORS 19.260(1)(a)(B) refers to a class or method of

shipment that is designed or estimated to achieve delivery

within three calendar days. And because classes of deliv-

ery are created and offered to the public by the USPS and

other delivery services, it necessarily is those delivery ser-

vices that do the planning or estimation, i.e., “calculat[ion],”

to which ORS 19.260(1)(a)(B) alludes. In other words, the

provision would require appellants to choose a class of deliv-

ery that the USPS or other delivery service has purposefully

designed or estimated—and has formally offered or made

known to the public—to accomplish delivery within three

calendar days.8

7

For example, when considering whether an attempt at service was made

“in a manner reasonably calculated under all the circumstances to apprise the

person served of the existence and pendency of [an] action” within the meaning of

ORCP 7 D, the Court of Appeals has referred to the “likelihood” that the method

used will apprise the person served of the action, but it is a likelihood based on

the totality of the circumstances as they were known to the plaintiff at the time

of service and as compared to other methods that have been deemed sufficient in

other circumstances. See, e.g., Dept. of Human Services v. K. L., 272 Or App 216,

225, 355 P3d 926 (2015); Pham v. Faber, 152 Or App 634, 644-45, 955 P2d 257,

rev den, 327 Or 484 (1998); Hoeck v. Schwabe, Williamson & Wyatt, 149 Or App

607, 621, 945 P2d 534 (1997).

8

An informal estimate offered by an employee of the delivery service would

not qualify. As noted, ORS 19.260(1)(a)(B) implies that it is the USPS or commer-

cial delivery service that must calculate that the class of delivery will achieve

delivery within three calendar days. That fact, and the fact that the delivery

service’s calculation must be accessible to the appellate courts, which must deter-

mine whether ORS 19.260(1)(a)(B) applies to the notices of appeal they receive,

suggests a standard or estimate that is formally offered or made known to the

public by the delivery service.

400 State v. Chapman

If, on the other hand, the term “calculated” means

“likely” in this context, then the intentions and designs of

the USPS and other delivery services are not relevant: An

appellant would only have to show that, as a factual matter,

an item sent through the chosen class would have a greater

than fifty percent chance of being delivered within three

calendar days. Still, given that the “calculated to achieve

delivery” phrase modifies “class of delivery,” ORS 19.260

(1)(a)(B) would demand a likelihood of three-day delivery

by the chosen class, not a likelihood of three-day delivery in

general.

The parties do not appear to dispute the latter

point, i.e., that the focus of the three-day delivery inquiry

in ORS 19.260(1)(a)(B) is necessarily on the “class of deliv-

ery” chosen by the would-be appellant. But there is a dis-

pute about what is to be delivered in the adjectival phrase

“calculated to achieve delivery within three calendar days.”

Adopting the view of the Court of Appeals majority, the state

contends that, because that phrase modifies the term “class

of delivery,” it is the class of delivery itself, as a whole, that

matters; by design, the class must ensure delivery of notices

of appeal within three calendar days. Under that interpre-

tation, the individual circumstances in which a notice of

appeal is mailed or dispatched are irrelevant: The expected

delivery time for notices of appeal mailed on Mondays and

Tuesdays may be three calendar days—because, in those

circumstances, the three business days advertised by the

USPS and three calendar days are one and the same—but

first-class mail, as a class, remains one that is designed and

estimated by the USPS to achieve delivery within three

business days.

Amicus curiae OTLA offers a different interpre-

tation. Taking its cue from the concurring opinion in the

Court of Appeals, OTLA argues that ORS 19.260(1)(a)(B) is

addressed to the filing, by mail or dispatch, of a particu-

lar notice of appeal, and that, in consequence, the provision

should be read to require mailing by a class of delivery cal-

culated to achieve delivery of that notice of appeal within

three days. If that meaning is applied, OTLA notes, then

on the day that defendant mailed her notice of appeal—a

Monday—first-class mail was a class of delivery calculated

Cite as 367 Or 388 (2020) 401

to achieve delivery of the notice within three calendar days,

because the three business day time period specified by the

USPS for first-class mail as a class would amount to three

calendar days for an item mailed on a Monday.

On a purely textual level, both interpretations are

plausible. The state is correct that, grammatically speak-

ing, the “calculated to achieve delivery” phrase modifies the

immediately preceding term, “class of delivery,” which, in

the absence of some specification of what is to be delivered

within the three calendar day time frame, could suggest a

referral back to the class of delivery and how it applies to all

notices of appeal. On the other hand, it is perfectly logical

and grammatically acceptable to assume that the provision

is requiring mailing or dispatch of the notice at issue—

“the notice” being the subject of the entire subsection of the

statute—by a class of delivery calculated to achieve delivery

of that notice within three calendar days. In fact, precisely

because of the provision’s overall focus on “the notice” and

whether its dispatch date will be considered its filing date,

that reading of the statute is a more natural one—that is,

more in tune with the way an ordinary reader would under-

stand the provision.

As the foregoing discussion shows, a perusal of the

statutory text alone is suggestive but not determinative

of legislative intent behind the reference in ORS 19.260

(1)(a)(B) to a “class of delivery calculated to achieve deliv-

ery within three calendar days.” The most natural and com-

pelling reading of the phrase requires a party to use of a

class of delivery that is designed or estimated by the USPS

or other delivery service to achieve delivery of the notice in

question, in the circumstances, within three calendar days.

That interpretation makes the provision applicable in some,

but not all, circumstances in which a would-be appellant

mails his or her notice of appeal by first-class mail on the

last day of the appeals period. But the other interpretations

offered by the parties are at least plausible.

2. Context

We turn to the parties’ contextual arguments,

which are less concerned with the broader meaning of ORS

19.260(1)(a)(B) than they are with whether the particular

402 State v. Chapman

class of delivery at issue here—first-class mail—is affir-

matively excluded from that provision’s application. In

overview, the state contends that, if ORS 19.260(1)(a)(B)

is considered in the light of other subsections and para-

graphs of the statute, it is evident that first-class mail is

affirmatively excluded from the scope of subparagraph

(1)(a)(B), while defendant contends that subparagraph

(1)(a)(A) demonstrates that the legislature must have

intended to include first-class mail. In our view, the contex-

tual evidence is inconclusive.

We start with the state’s arguments. The state notes

that subsection (1) of the statute provides two alternatives

that allow appellants to use the mailing date as the filing

date of a notice of appeal: the first for notices sent by “regis-

tered or certified mail,” ORS 19.260(1)(a)(A), and the second

for notices sent “by a class of delivery calculated to achieve

delivery within three calendar days,” ORS 19.260(1)(a)(B).

Both alternatives, the state adds, require that the party

filing the notice of appeal “ha[ve] proof” from the USPS or

other delivery service of the mailing or dispatch date. And

for both alternatives, the party filing the notice of appeal

must certify and file proof of the date of mailing or dispatch

with the appellate court. ORS 19.260(1)(b).

The state contends that those two alternatives, cou-

pled with the proof requirements, only make sense if the

latter alternative set out in ORS 19.260(1)(a)(B) and at issue

here is limited to expedited classes of delivery—which would

exclude first-class mail. In the state’s view, the legislature

enacted an alternative based on first-class mail, which

requires a party to purchase an add-on service of certified

or registered mail from the USPS for proof of mailing, and

a second alternative based on an expedited class of delivery,

which also requires a party’s contact with the shipper and

more or less automatically gives the party the proof of mail-

ing required by paragraph (1)(b). Simply depositing a notice

of appeal in a mailbox to be delivered by first-class mail, on

the other hand, would not give the sender the required proof.

Moreover, the state argues, subparagraph (1)(a)(A) becomes

entirely superfluous if subparagraph (1)(a)(B) is not limited

to expedited services: First-class mail is the only class of

mail that is eligible for registered or certified mail service,

Cite as 367 Or 388 (2020) 403

and if a party can obtain the relation-back benefit provided

in subparagraph (1)(a)(B) by using ordinary first-class mail,

there is no need to separately provide that benefit for certi-

fied and registered mail.

The state also points to certain similarities and

differences between the provisions in subsection (1) of ORS

19.260 that pertain to filing of notices of appeal by mail or

delivery service and those in subsection (2) that pertain to

service of notices of appeal by mail or delivery service. The

state notes that, as in paragraph (1)(a), paragraph (2)(a) sets

out two alternatives that allow appellants to use the date

of mailing as the date of service. The second of those alter-

natives refers to a “class of delivery calculated to achieve

delivery within three calendar days,” ORS 19.260(2)(a)(B).

However, the state observes, the first alternative, at sub-

paragraph (2)(a)(A), differs from the alternative provided in

subparagraph (1)(a)(A), in that it lists “[f]irst class mail, reg-

istered or certified mail” as within the provision’s applica-

tion. The state asserts that, particularly when the relation-

back provisions in ORS 19.260 for filing and service are

otherwise so similar, the inclusion of first-class mail in sub-

paragraph (2)(a)(A) but not in subparagraph (1)(a)(A) indi-

cates an affirmative intent to exclude first-class mail from

the relation-back benefit provided for filing notices of appeal

in subsection (1).

Finally, the state asserts that the historical context

in which ORS 19.260(1)(a)(B) was enacted supports a conclu-

sion that first-class mail is affirmatively excluded from that

provision’s application. The state notes that, traditionally,

filing of a notice of appeal by mail or otherwise was deemed

to have occurred when the clerk of the court received it and

placed it in the case files. See McDonald v. Crusen, 2 Or 258,

258 (1868); Bade v. Hibberd, 50 Or 501, 503-04, 93 P 364

(1908). And in 1979, when the legislature enacted the first

statute that allowed the mailing date of a notice of appeal

to be counted as the filing date, it provided that relation-

back benefit only for notices sent by certified or registered

mail. Or Laws 1979, ch 297, § 1. The general rule—that

notices are deemed filed upon receipt—continued to apply

for notices sent by first-class mail. See State v. Harding, 347

404 State v. Chapman

Or 368, 371-72, 223 P3d 1029 (2009) (rejecting argument

that date of mailing counted as the date of filing for a notice

of appeal sent by ordinary first-class mail). Thus, for most

of Oregon’s legal history, notices sent by ordinary first-class

mail were deemed filed upon receipt. The state asserts that,

because ORS 19.260(1)(a)(B) was enacted against that back-

drop, it is reasonable to assume that any legislature that

intended to change that rule would have done so clearly and

expressly. The absence of any express reference to first-class

mail in the statute, the state concludes, thus indicates that

the legislature did not intend to change the rule when it

added subparagraph (1)(a)(B) to ORS 19.260.

The state’s contextual arguments, though, do not

account for other aspects of the historical development of

ORS 19.260. Considering the development of the statute

from 1979 to 2015 opens up another view of what the legis-

lature was accomplishing.

The history of the statute is set out in the Court of

Appeals majority opinion. Chapman, 298 Or App at 608-09.

In 1979, as noted, the legislature first enacted a statute per-

mitting the date of filing to relate back to the date of mail-

ing, then codified as ORS 19.028 (1979), which provided that

notices of appeal and petitions for review may be filed by

mail and that

“[t]he date of filing such notice or petition shall be the date

of mailing, provided it is mailed by registered or certified

mail and the appellant has proof from the post office of such

mailing date. * * * Proof of mailing shall be certified by the

appellant and filed thereafter with the court to which the

appeal is taken.”

In 1987, former ORS 19.028 was amended to add a

new subsection (2), which authorized service of a notice of

appeal on other parties, court reporters, and court clerks

by mail, “subject to the same requirements as filing notice

of appeal by mail as provided in subsection (1) of this sec-

tion.” Or Laws 1987, ch 852, § 6. Presumably, that provision

meant that the mailing date would be deemed the service

date of the notice, “provided it is mailed by registered or cer-

tified mail and the appellant has proof from the post office

of such mailing date.”

Cite as 367 Or 388 (2020) 405

In 1989, however, the legislature amended subsec-

tion (2) of former ORS 19.028 to differentiate the rule for

service by mail from the rule for filing by mail. The new sub-

section (2) provided that service of a notice of appeal

“may be accomplished by first class, registered or certified

mail. The date of serving such notice shall be the date of

mailing. Proof of mailing shall be certified by the party fil-

ing the notice and filed thereafter with the court to which

the appeal is taken.”

Or Laws 1989, ch 768, § 12. Notably, in ending the former

reference to the requirements of subsection (1) and setting

out a specific rule for service of notice, the 1989 version added

first-class mail as a category of mail that could be used, in

addition to certified and registered mail, to serve a notice

of appeal. The 1989 amendment also removed the require-

ment, incorporated by reference, that the person serving the

notice “ha[ve] proof from the post office” of the mailing date.

However, the new subsection (2) continued to require proof

of service; the party had to certify having mailed notice to

the persons served and had to file that certification with the

appellate court.

In 1997, ORS chapter 19 was reorganized. As a

result, former ORS 19.028 became ORS 19.260.

In 2015, the legislature enacted the amendments to

ORS 19.260 that are at issue here. For both filing of notice

and service of notice, the legislature added mailing or dis-

patch by a “class of delivery calculated to achieve delivery

within three calendar days” as a method under which the

mailing or dispatch date would count as the date of filing or

service. ORS 19.260(1)(a)(B), (2)(a)(B); Or Laws 2015, ch 80,

§ 1. But it maintained the difference in the two subsections

with respect to “hav[ing] proof” of the dispatch date, and,

while leaving in place the requirement that a person filing

notice of appeal must certify and file “proof of the mail-

ing or dispatch date,” it changed the previously equivalent

requirement with respect to service of the notice to require

only that the person filing the notice of appeal “certify the

date and method of service.”

That history of ORS 19.260 shows that having

and filing “proof” of mailing date has been and remains a

406 State v. Chapman

requirement for obtaining the statute’s relation-back benefit

when filing a notice of appeal but, at least since 1989, such

proof has not been a requirement for obtaining that benefit

when serving the same notice of appeal. Before 1987, when

the statute addressed only the filing of notices of appeal, the

limitation to registered and certified mail would have satis-

fied the proof of mailing date requirement more or less auto-

matically. In 1989, when the legislature clarified that the

statute’s application to service of a notice of appeal did not

depend on the appellant having proof of the mailing date, it

also made sense to clarify that the relation-back benefit was

available for notices served by ordinary first-class mail—

which would be expected to be delivered within the same

timeframe as registered and certified mail, albeit without

proof of mailing date—because that is the class of mail to

which those mailing services are attached. When, in 2015,

the legislature chose to expand the category of delivery

methods to which the relation-back benefit would apply for

both filing and service of notice of appeal, it did so by leav-

ing the specified delivery methods in the filing and notice

provisions in place, but adding to each the same general-

ized description of additional methods of delivery by mail

or delivery service that would qualify—“class[es] of deliv-

ery calculated to achieve delivery within three calendar

days.”

Once it is understood how ORS 19.260 changed over

time, it becomes clear that the specific reference to “regis-

tered or certified mail” in present-day ORS 19.260(1)(a)(A)

need not have the significance that the state ascribes to

it—either when compared to the generalized description of

acceptable classes of delivery in subparagraph (1)(a)(B) or

to the similarly specific reference to “first-class, registered

or certified mail” in subparagraph (2)(a)(A). In expanding

the range of methods of delivery to which the relation-back

benefit for filing and serving notices of appeal would apply,

the 2015 legislature simply added to each subsection’s pre-

cise specification of acceptable classes of mail a new cate-

gory that, instead of specifying additional classes of delivery,

provides a general standard. It may not have considered, at

the time, how that new general standard would relate to

the earlier, precisely specified categories, including whether

Cite as 367 Or 388 (2020) 407

it made them redundant.9 Neither did the 2015 legislature

necessarily give any particular thought to the status of

first-class mail under the newly added category. In short,

when considered in the context of ORS 19.260 as a whole,

the absence of any mention of first-class mail in subpara-

graph (1)(a)(A) does not suggest an affirmative intention to

exclude ordinary first-class mail from the scope of (1)(a)(B).

On the other hand, neither does subparagraph

(1)(a)(A)’s specification of “registered or certified mail” con-

stitute definitive evidence that first-class mail falls within

the scope of subparagraph (1)(a)(B), as defendant suggests.

Defendant’s theory, in that regard, begins with the proposi-

tion that ORS 19.260 is generally addressed to two issues:

expected speed of delivery and proof of the date of mailing

to the courts. Defendant contends that, because ORS 19.260

(1)(a)(A) identifies “registered or certified mail” as accept-

able methods of delivery, and both methods are ancillary

services that may be added only to first-class mail,10 one

can reasonably infer that, before 2015, when the statute’s

relation-back benefit was available only for “registered or

certified mail,” first-class mail was an acceptably speedy

class of delivery by which to file a notice of appeal by mail-

ing. It stands to reason, defendant continues, that, when the

legislature thereafter liberalized the requirements for filing

notice by mail by adding subparagraph (1)(a)(B), it under-

stood that first-class mail would be acceptably speedy under

that subparagraph as well. Defendant offers a reason to

believe that the legislature understood that first-class mail

was a sufficiently speedy method for delivery of a notice of

appeal; but that does not compel the conclusion that the leg-

islature therefore amended ORS 19.260 to include first-class

mail, devoid of the proof of mailing date that one obtains by

paying for certified or registered mail as specified in ORS

9

Moreover, as defendant notes, the apparent redundancy is perfectly

rational and may have been intentional: Subparagraph (1)(a)(A) sets out specific

factual scenarios (certified and registered mail) which can be deemed accept-

able automatically, while subparagraph (1)(a)(B) sets out a general catchall,

which requires further inquiry into the facts. Cf., e.g., State ex rel Hydraulic

Servocontrols Corp. v. Dale, 294 Or 381, 384-85, 657 P2d 211 (1982) (explaining

why similar statutory arrangement is not irrational).

10

They also apply to the USPS’s equivalent to first-class mail for packages,

“priority mail.”

408 State v. Chapman

19.260(1)(a)(A). All in all, context fails to stack up in either

party’s favor.

3. Legislative history

We proceed to the legislative history of ORS

19.260(1)(a)(B), which, as noted, was added to ORS 19.260 by

the 2015 Legislative Assembly. Before then, ORS 19.260(1)

provided that the filing date of a notice of appeal was its

mailing date, if the notice of appeal was “mailed by reg-

istered or certified mail and the appellant has proof from

the post office of such mailing date.” In 2015, members of

the Oregon State Bar’s Appellate Practice Section proposed

a bill to the legislature that would allow the relation-back

benefit provided in ORS 19.260(1) to apply to additional

modes of delivery. The bill, House Bill (HB) 2336 (2015),

originally would have amended ORS 19.260(1)(a) to provide

that the date of mailing would count as the date of filing

if the notice is (A) “[m]ailed by registered or certified mail

* * *” or (B) “[m]ailed for delivery within three calendar days

via the United States Postal Service or a commercial deliv-

ery service * * *.”11

The bill was not controversial and generated little

discussion in the legislature. It was introduced in the House

Committee on Judiciary by a representative of the Appellate

Practice Section, Jordan Silk. Silk explained that, under the

existing statute, parties could rely on the mailing date for

timely filing and service of a notice of appeal only if they

mailed the notice in a certain way: They could not rely on the

mailing date if they sent the notice via a third-party commer-

cial carrier—in spite of the fact that, under the Oregon Rules

of Appellate Procedure, mailing by commercial carrier is an

acceptable method of filing and serving other appellate doc-

uments. Audio Recording, House Committee on Judiciary,

HB 2336, Feb 4, 2015, at 00:40:24 - 00:43:17 (testimony of

Jordan Silk), https://olis.leg.state.or.us (accessed Dec 18,

2020). Silk warned that this state of affairs created a “trap

for the unwary,” because practitioners might think that a

notice of appeal mailed by commercial carrier had been filed

on the mailing date—a serious mistake, given that timely

filing and service of a notice of appeal is jurisdictional. Id.

11

The bill would have amended ORS 19.260(2)(a) in a similar way.

Cite as 367 Or 388 (2020) 409

Silk suggested that enacting HB 2336 would solve the prob-

lem by allowing filing and service of a notice of appeal or

other initiating document by third-party commercial carri-

ers to the same extent that it is allowed for other appellate

documents. Id. Doing so, according to Silk, “would avoid sig-

nificant prejudice to litigants that result from a technical

defect in the filing method” and “also avoid a malpractice

trap for lawyers.” Id.

Silk’s testimony was followed by that of Senior

Counsel for the State Court Administrator, Bruce Miller.

Miller briefly testified that, although the Oregon Judicial

Department had no problem with the concept behind the bill,

it was concerned about an ambiguity in the phrase “mailed

for delivery within three calendar days.” Audio Recording,

House Committee on Judiciary, HB 2336, Feb 4, 2015, at

00:43:17 - 00:46:18 (statement of Bruce Miller), https://olis.

leg.state.or.us (accessed Dec 18, 2020). He explained:

“Does it mean that the sender is guaranteeing three-day

delivery? Is it an unspecified expectation of delivery—if I’m

in Portland and mail first class down here I expect it to be

here in three days or less? * * * I think where the appel-

late section is going is that they’re talking about a class of

delivery and * * * if the Committee is willing and the Bar

is willing, we’re happy to work with them to clean that up.

* * * We’re working our way down that road to try to remove

that ambiguity so that the bill does what it’s supposed to do

which is not to create any traps for the unwary.”

Id. A committee member then asked Miller about why par-

ties were not simply required to file electronically. Miller

responded that the courts were moving in that direction and

that “especially in the appellate courts, we are just about

ready to make it mandatory for everyone.” But, Miller added,

there was a class of parties—“especially self-represented

parties”—that “you have to allow * * * to file a traditional

paper petition.” Id. (statements of Rep Mitch Greenlick and

Senior Counsel Bruce Miller).

Thereafter, the bill was amended by replacing the

phrase “mailed for delivery within three calendar days” with

the wording that presently appears at subparagraph (1)(a)(B)

of the statute—“mailed or dispatched via the United States

410 State v. Chapman

Postal Service or a commercial delivery service by a class

of delivery calculated to achieve delivery within three cal-

endar days.” In that form and without further discussion, it

was moved to the floor with a “do pass” recommendation by

the House Committee on Judiciary and passed by consent

in the House. The bill then moved to the Senate Committee

on Judiciary.

There, Silk again introduced the bill. In his written

testimony, he explained that it was “aimed at reducing pos-

sible confusion associated with filing and serving notices of

appeal,” which arose out of the fact that ORS 19.260 allowed

parties to rely on the date of mailing when using registered

or certified mail—but not commercial shippers—for timely

filing and service of notices of appeal. Audio Recording,

Senate Committee on Judiciary, HB 2336, Apr 30, 2015, at

00:29:30 - 00:32:35 (testimony of Jordan Silk), https://olis.leg.

state.or.us (accessed Dec 18, 2020). He concluded by stating

that the bill would “simplify and clarify the process for filing

and serving initiating documents” and that it would “remove

a potential pitfall that would result in the complete loss of

appellate rights based on a technical defect.” Id. The Senate

committee voted, without further discussion, to move the

bill to the floor, where it passed without objection. It was

signed by the Governor and became effective on May 18,

2015.

The Court of Appeals majority concluded from that

history that, in enacting HB 2336, the legislature had not

intended to expand the statute’s application to ordinary

first-class mail. It characterized Silk’s explanation of the

bill as being directed at allowing its application to “commer-

cial carriers that had become common alternatives offering

expedited delivery,” and, while acknowledging that the bill

as enacted was not restricted to delivery by commercial car-

riers, it concluded that the categories of delivery that the

legislature intended to add included only “expedited deliv-

ery services” and, thus, not ordinary first-class mail. 298 Or

App 610-11.

Defendant draws a different message from the his-

tory of HB 2336’s enactment. In defendant’s view, the brief

comments to the legislative committees by Silk and Miller

Cite as 367 Or 388 (2020) 411

provide little insight into whether the legislators understood

that first-class mail would fall within the bill’s parameters,

but they do show that the bill had two primary purposes:

(1) to expand the methods by which a party could file a notice

of appeal and (2) to remove “traps for the unwary” in filing

such notices. Defendant asserts that those purposes are

best served by reading the general “calculated to achieve

delivery” standard broadly, in the way that ordinary citi-

zens would understand it. That reading requires that the

particular notice at issue be sent by a class of delivery that,

under the circumstances in which it is being sent, is likely

to be delivered within three calendar days.

The state counters, however, that the legislative

history shows that the legislature’s purposes in enacting

HB 2336 were much narrower than the ones that defendant

offers. The state highlights that Silk, the point person who

offered an explanation of the bill during the legislative pro-

cess, repeatedly described it as allowing the relation-back

benefit for filing and serving notices of appeal to include dis-

patch by “third-party commercial carrier.” The state then

asserts that, insofar as commercial shippers exist primarily

to provide expedited delivery, the bill’s purpose apparently

was a narrow one: to “enabl[e] appellants to file last-minute

notices of appeal using expedited classes of delivery offered

by USPS and commercial carriers” (emphasis added)—not

to generally loosen the existing statute’s requirements. The

state also observes that Silk’s comments were focused on

the Oregon State Bar’s organizational interests in assist-

ing practitioners and that, consistently with that focus,

Silk spoke about eliminating one particular “trap for the

unwary”—the malpractice trap that resulted from preclud-

ing ORS 19.260’s application to notices of appeal sent by

third-person commercial carrier. In other words, the state

argues, the legislative record contains no support for the

generalized legislative purposes that defendant purports to

find there—and, therefore, no justification for reading ORS

19.260(1)(a)(B) so as to give it broader application beyond

the particular malpractice trap that Silk described.

Neither party’s explanation of the legislative his-

tory is entirely satisfactory. On the one hand, we agree with

the state that the testimony in the legislative record focuses

412 State v. Chapman

on the need to fix a specific situation—potential malpractice

by an attorney who has used a commercial shipper in an

attempt to expedite and achieve timely delivery of a notice

of appeal—rather than on generally expanding the methods

by which a party could file and serve a notice of appeal. On

the other hand, the legislative history fails to conclusively

establish that ORS 19.260(1)(a)(B) pertains only to “expe-

dited” classes of delivery, given the absence of any mention

of “expedited delivery” in any of the legislative proceedings

or in the bill itself.

What the legislative history does show is that,

after Silk introduced the original bill (which referred to

mailing by the USPS or other delivery service “for delivery

within three calendar days”), legislators heard from Miller

that there were concerns about that phrase’s lack of clar-

ity and that the problem might be resolved by expressing

what was required in terms of classes of delivery. But when

the amended bill was offered, it did not identify particular

classes of delivery or limit the classes to expedited delivery

services. Instead, it provided a general standard for accept-

able classes of delivery. It may be that the drafters of the

amended bill had initially thought to limit the provision to

so-called “expedited” classes, but the reality is that commer-

cial carriers and the USPS have no consistent, comparable

classes of delivery, “expedited” or not, whose characteristics

are guaranteed to remain stable over time. In any event, the

legislature’s choice to phrase the provision in terms of a gen-

eral standard necessarily reflects an intention that it apply

to any class of delivery that meets the standard—and not

only to so-called “expedited” classes. As we have observed

before, statutes “ordinarily are drafted in order to address

some known or identifiable problem, but the chosen solution

may not always be narrowly confined to the precise problem.

The legislature may and often does choose broader language

that applies to a wider range of circumstances than the

precise problem that triggered legislative attention.” South

Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531, 724 P2d

788 (1986).

Although Silk’s primary focus was on removing a

specific potential malpractice trap, Silk also described the

bill, more generally, as clarifying the filing process and

Cite as 367 Or 388 (2020) 413

preventing the loss of the right to appeal due to technical

defects in the filing method. And in the House committee,

the Judicial Department’s representative, Miller, also spoke

about “not creat[ing] any traps for the unwary.” That testi-

mony was not focused on the specific potential malpractice

trap of using a commercial carrier to mail a notice of appeal

but rather concerned ambiguity in the wording of the origi-

nal bill. At Miller’s suggestion and after an interchange that

specifically addressed the continuing necessity of allowing

self-represented parties to file documents in paper form once

electronic filing was required for members of the Bar, the

House committee agreed to allow the Judicial Department

and the Bar’s Appellate Practice Section to work out a clar-

ifying amendment and ultimately adopted the amendment

that they offered.

Given that legislative history, we cannot conclude

that the legislature was concerned only about dismantling

a particular malpractice trap. Although that testimony and

the consequent revision of the bill may not establish that HB

2336 was enacted for the purpose of ensuring against all

traps for the unwary, they suggest that the bill, as enacted,

was drafted at least in part with ordinary litigants, includ-

ing self-represented litigants, in mind. We can presume,

then, that the legislature intended the resulting statute to

clarify the filing process to prevent loss of appellate rights

due to “technical defects,” not just for legal practitioners but

for self-represented litigants as well.

Finally, we address a species of “absurd results”

argument that the state advances. The state contends that,

if the statute’s relation-back benefit is not limited to classes

designed to achieve delivery of notices within three calendar

days as a whole, in all circumstances, then its application

becomes complex and unpredictable, a result that the leg-

islature could not have reasonably intended. The Court of

Appeals majority also made that point. It noted that the pre-

2015 statute “achieved uniformity” by requiring use of spec-

ified mail services, so that “no one needed to worry about

the individually varying circumstances of delivery.” 298 Or

App at 613. By comparison, the majority then explained,

if the concurrence were correct that ORS 19.260(1)(A)(b)

is concerned with delivery of a particular notice of appeal,

414 State v. Chapman

there would be no uniformity, which would be administra-

tively inconvenient, confusing for litigants, and, ultimately,

“irrational.” Id.

We reject the premise that the consequences of view-

ing the statute from the standpoint of a particular litigant’s

dispatch of his or her notice of appeal would be so chaotic

that the legislature could not have intended that meaning.

First, although we cannot deny that reading the statute to

permit appellate courts to look only at the class of delivery

used to dispatch a notice of appeal would be more convenient

for those courts, the legislative history does not suggest that

the legislature’s choices were driven by judicial administra-

tive convenience. Second, the concern that litigants might

be confused weighs in favor of the more natural reading of

ORS 19.260(1)(a)(B) that the concurrence proposed. Indeed,

this case offers an example of a self-represented litigant who

read the statute in that way, concluding that the statute

was directed at the circumstances of her particular notice

of appeal. Reading the statute in that way is not irrational,

and, as amicus curiae OTLA observes, having different out-

comes that result from consistently applying the statute to

different facts is no more confusing to litigants than having

filing deadlines set by statutes or rules that may vary in

individual cases according to the occurrence of weekends,

holidays, snow days, and even electronic events.

4. Application

We already have concluded that, although other

meanings are plausible, the most natural and compelling

interpretation of the text of ORS 19.260(1)(a)(B) is that it

refers to a class of delivery that is actively estimated or

designed by the USPS or commercial delivery service to

achieve delivery of the particular notice of appeal in ques-

tion within three calendar days. Although the state has

argued that the context surrounding the provision and an

implied legislative preference for uniformity and adminis-

trative simplicity suggest a different meaning, we are not

persuaded by those arguments. Neither are we persuaded

that the legislative history supports a different meaning: If

anything, the sparse legislative history supports the mean-

ing above, in that it is the meaning that ordinary litigants

Cite as 367 Or 388 (2020) 415

would give to the words.12 We conclude that, when ORS

19.260(1)(a)(B) limits its application to notices of appeal

mailed by a “class of delivery calculated to achieve deliv-

ery within three calendar days,” it is referring to classes

of delivery that are actively and purposefully designed or

estimated—but not necessarily guaranteed—by the USPS

or other delivery service to achieve delivery of the notice of

appeal in question, in the circumstances, within three cal-

endar days.

Applying that construction to the circumstances at

issue here, we conclude that defendant mailed her notice of

appeal by a class of delivery to which the relation-back ben-

efit offered by ORS 19.260(1)(a)(B) would apply. The USPS

publicizes its delivery time for first-class mail as “1-3 busi-

ness days,” suggesting that, by USPS intention and design,

first-class mail should be delivered within that time period.

In the circumstances in which defendant mailed her notice

of appeal—on the Monday of a week without government

holidays—that publicized delivery period of three business

days was the same as three calendar days, meaning that the

notice was mailed by a class of delivery designed and esti-

mated by the USPS to achieve delivery of the notice within

three calendar days.

B. Proof of Mailing Date

As described above, the concurring judge in the

Court of Appeals concluded that, although defendant had

sent her notice of appeal by a class of delivery that satisfied

the general standard set out in ORS 19.260(1)(a)(B), she had

not satisfied the proof-of-mailing-date requirements in that

subparagraph and in paragraph (1)(b). 298 Or App at 620-22

(Aoyagi, J., concurring). In her opinion, the concurring judge

explained that, to take advantage of the relation-back bene-

fit that the statute offered for persons mailing their notices

of appeal, an appellant must “ha[ve] proof” of the date of

mailing—a requirement set out in subparagraph (1)(a)(B)

12

It also is the meaning that best protects ordinary litigants from losing

their right of appeal based on nonobvious technicalities. We agree with the Court

of Appeals concurrence that, given the devastating consequences of a failure to

adhere to the statute’s instructions, ORS 19.260(1) must be read “consistently

with how average people in the real world will read it.” 298 Or at 620 (Aoyagi, J.,

concurring).

416 State v. Chapman

that, in her view, cannot be satisfied by a postmark or PVI

label on the mailing envelope. Id. at 621. The concurring

judge reasoned that, because such marks and labels are

applied after the envelope is surrendered for mailing and are

never in the appellant’s possession, an appellant does not

have proof of the mailing date. Neither, in her estimation,

can the requirement in paragraph (1)(b) that proof of the

mailing date “be certified by the party filing the notice and

filed thereafter with the court” be satisfied when the only

proof is a postmark or PVI label on the mailing envelope—

because “[a] party cannot certify and file something not in

their possession.” Id. The concurring judge thus concluded

that, to satisfy the proof-of-mailing-date requirements in

ORS 19.260(1), an appellant who files his or her notice by

mail must obtain, certify, and file some sort of “receipt”

from the USPS, in addition to the postmark or PVI label,

as provided in ORAP 1.35(1)(b)(iii)(A).13 Id. at 622. In this

case, defendant had not obtained and filed an additional

receipt but merely relied on a dated PVI label on the mail-

ing envelope. The concurring judge concluded that, because

defendant had not satisfied the proof requirements of ORS

19.260(1), under ORS 19.270(2)(b), the Court of Appeals

lacked jurisdiction to hear defendant’s appeal. Id.

The dissenting judges concluded, to the contrary,

that the direction in subparagraph (1)(a)(B) that an appel-

lant “ha[ve] proof” of the date of mailing does not require

that he or she personally and physically possess the proof

that he or she intends to rely on. Rather, a postmark or PVI

label, although not in the sender’s possession, is “ha[d]” by

the sender in the sense that it continues in the sender’s ser-

vice. 298 Or App at 625 (Egan, C. J., dissenting). Similarly,

the dissent added, the filing of proof of the date of mailing

that ORS 19.260(1)(b) requires may be accomplished by “giv-

ing an unmarked envelope to a postal clerk for application

13

ORAP 1.35(1)(b)(iii)(A) provides, in part:

“Acceptable proof from the U.S. Postal Service of the date of mailing must

be a receipt for certified or registered mail or other class of service for deliv-

ery within three calendar days, with the mail number on the envelope or on

the item mailed, and the date of mailing either stamped by the U.S. Postal

Service on the receipt or shown by a U.S. Postal Service postage validated

imprint on the envelope received by the Administrator or the U.S. Postal

Service’s online tracking system.”

Cite as 367 Or 388 (2020) 417

of a PVI, and fairly assuming that the court will place that

envelope as a digital file in the court records upon receipt.”

Id. at 626. Finally, the dissent explained, to the extent

that the requirement in subsection (1)(b) that an appellant

certify “proof of the date of mailing” demands something

different from the ordinary certificate of filing that, under

ORAP 2.05, is required in any appeal (alone or in combina-

tion with the postmarked or PVI-labeled envelope), the pro-

vision appears to permit such certification to be filed after

the notice of appeal is received by the appellate court. Id. at

626-28.

Defendant embraces the interpretation of the proof-

of-mailing-date provisions advanced in the dissenting opin-

ion in the Court of Appeals. Although the state does not

overtly adopt the interpretation offered by the Court of

Appeals concurrence, that interpretation is nevertheless

one that must be considered.14 The question, again, is one

of legislative intent, to be answered by examining the stat-

utory text and context and any helpful legislative history.

Gaines, 346 Or at 171-73.

1. Text

The statutory wording that is relevant to the proof-

of-mailing-date issue appears in ORS 19.260(1)(a)(B) and

(1)(b). Subparagraph (1)(a)(B) provides that the date of mail-

ing a notice of appeal may count as the date of filing only if,

among other things, “the party filing the notice has proof

from the United States Postal Service or the commercial

delivery service of the mailing or dispatch date.”

We first address the issue of sufficient “proof” of the

mailing date from the USPS or delivery service. The sec-

ond sentence of ORS 19.260(1)(b) provides: “Any record of

mailing or dispatch from the United States Postal Service

or the commercial delivery service showing the date that

the party initiated mailing or dispatch is sufficient proof of

14

The state simply argues that, because a sender of first-class mail does not

ordinarily obtain a record of mailing or dispatch from the USPS, the statute’s

proof of mailing date requirements are not “readily compatible” with ordinary

first-class mail—lending further support to its view that the legislature did not

intend that the relation-back benefit provided in the statute would apply to ordi-

nary first-class mail.

418 State v. Chapman

the date of mailing or dispatch.” Under that wording, the

proof of the date of mailing that a person filing a notice

of appeal must “ha[ve],” certify, and file is “sufficient” if it

(1) is any record of mailing or dispatch; (2) was created by

or came from the USPS or commercial delivery service; and

(3) shows the date of mailing or dispatch. The sentence is

unambiguous: “Any record” that meets those requirements

is sufficient. Though the Court of Appeals concurrence

argued that a party must obtain a separate document show-

ing proof of mailing from the USPS or delivery service, the

statute contains no requirement that proof be in the form of

a separate document or receipt. We are unpersuaded that

the phrase “any record of mailing or dispatch” is merely

addressed to “the reality that different delivery services pro-

vide different forms of proof.” 298 Or App at 622 (Aoyagi, J.,

concurring). In this case, defendant relied on a PVI label on

the envelope that she used to send her notice of appeal to

the court. That label was a record of mailing, created and

affixed on the envelope by the USPS, and showed the date of

mailing.

Although the PVI label constitutes “proof from the

United States Postal Service” of the mailing date, the ques-

tion nevertheless remains whether a person who sends mail

to which such marks have been applied “has” that proof for

purposes of ORS 19.260(1)(a)(B). On that point, the text

appears to be ambiguous.

If, on the one hand, the legislature intended the

word “has” in the phrase “has proof” only in the sense of

actual physical possession, a party wishing to have the

mailing date of their notice of appeal count as its filing

date would have to obtain from the USPS and keep in their

possession some additional, tangible documentation of the

mailing date. On the other hand, if the legislature intended

the word in a broader sense that includes an ability to call

upon or use, a would-be appellant who did not obtain such

additional documentation would still “ha[ve] proof” of the

mailing date, insofar as he or she could point to and rely on

the postmark or PVI label applied by the postal service to

the envelope in which the notice was delivered to the appel-

late court. Both meanings are possible: While one common

definition of “have” is “to hold in possession as property,”

Cite as 367 Or 388 (2020) 419

another equally common definition is “to hold, keep, or

retain esp. in one’s use, service, regard, or affection or at

one’s disposal.” Webster’s at 1039.15

The ambiguity about what is meant by “ha[ving]

proof” carries over to the requirement in ORS 19.260(1)(b)

that “proof of the date of mailing * * * be certified by the

party filing the notice and filed thereafter.” As noted, the

Court of Appeals concurrence concluded that one cannot

certify and file “proof of the date of mailing” that is not in

one’s physical possession. 298 Or App at 621 (Aoyagi, J.,

concurring). At least with respect to filing proof of the date

of mailing, however, there is an argument to the contrary.

When a notice of appeal is delivered to an appellate court in

an envelope to which the date of mailing has been applied

by postmark or PVI label, that envelope, or a physical or

digital copy thereof, is added to the case file in accordance

with the appellate court’s usual practice. In such circum-

stances, while the appellant has never physically possessed

the proof, he or she has caused it to be filed with the appel-

late court, along with the notice of appeal. That may qualify

as filing proof of the mailing date: Certainly, nothing in the

text of ORS 19.260(1)(b) excludes that possibility.

As to the requirement in ORS 19.260(1)(b) that

“proof of the date of mailing” be certified by the person

giving notice of appeal, it is unclear from the statute how

that is to be accomplished, which gives rise to both that

preliminary procedural question and the question whether

the proof must be in the physical possession of the appel-

lant before it is certified and filed. To “certify” something is

generally thought to mean to attest to something or declare

its truth—a meaning that is reflected in the “Certificate of

Filing” form, set out in Appendix 2.05 of the Oregon Rules

of Appellate Procedure (a signed statement by the appellant

that he or she filed the notice of appeal to which the certifi-

cate is attached on a specified date by a specified method, e.g.,

ordinary first-class mail, hand delivery, etc.). While attest-

ing to a fact—for example, that the notice of appeal was

15

The definition of “have” includes a further explanation—that the term is a

“very general” one “indicating any condition of action or control, retaining, keep-

ing, regarding, or experiencing as one’s own.” Webster’s at 1039.

420 State v. Chapman

sent by first-class mail on a specified date—is common and

understandable, it is difficult to imagine how one attests to

proof of that fact. In the absence of any further instruction,

it would not be unreasonable to interpret such a require-

ment as asking for certification of the underlying fact—

particularly when there is an apparently separate require-

ment that proof of the fact be filed. Thus, one plausible

meaning of the instruction in ORS 19.260(1)(b) that “proof of

the date of mailing * * * must be certified by the party filing

the notice and filed thereafter”16 is that the person filing the

notice of appeal must attach a signed statement certifying

the date on which they mailed the notice and also file proof

of the date of mailing. The question then would be whether

causing proof of the mailing date to be filed with the court

by, for example, sending the notice of appeal in such a way

that a postmark or PVI label will be applied to the enve-

lope in which it arrives, would be sufficient. As noted above,

nothing in the text of the provision appears to exclude that

possibility.

Another plausible meaning is that the person filing

the notice of appeal must sign a statement attesting to the

fact that such proof exists and to its form and then file that

signed statement with the proof attached. However, no such

form of certification is mentioned in ORAP 2.05, which sets

out the necessary components of a notice of appeal. Given

that fact, and the fact that ORS 19.260(1)(b) provides that

“proof of the date of mailing * * * must be certified by the

party filing the notice and filed thereafter,” it would seem

that such certification and filing of proof of the mailing date

need not occur until after the notice of appeal is filed. Thus,

an appellant who sent notice of appeal by ordinary first-

class mail could satisfy the certification and filing require-

ments by obtaining a copy of the postmark or PVI label on

the envelope in which the notice of appeal was mailed (from

the court to which it was delivered) and certifying and filing

that “proof of the date of mailing.”

16

The word “thereafter” in the quoted phrase appears to relate to the act

of certifying, so that the person sending the notice files the proof after certify-

ing it. As this court noted with respect to an earlier version of the statute that

included the same phase, “this hardly need[s] saying.” Modoc Lumber Co. v. EBI

Companies, 295 Or 598, 602, 668 P2d 1225 (1983).

Cite as 367 Or 388 (2020) 421

2. Context

Turning to the statute’s context, we first consider

ORAP 1.35(1)(b), a provision of the rules of appellate pro-

cedure that corresponds to ORS 19.260(1). The Court of

Appeals concurrence alluded to the present version of the

rule, although the most directly relevant piece of that ver-

sion comes from an amendment to the rule, which, because

it was adopted after ORS 19.260(1)(a)(B) and (1)(b) were

enacted, cannot properly be considered context for under-

standing the legislative intentions underpinning those pro-

visions. However, given that the rule appears to be directed

at either replicating or illuminating the meaning of ORS

19.260(1)(a)(B) and (1)(b) and that at least some of it pre-

ceded the enactment of those provisions, we will consider

whether it has anything to offer regarding the legislature’s

intent.

Rule 1.35(1)(b)(iii)(A) provides:

“A person may deliver an initiating document for filing

via the U.S. Postal Service, and delivery is complete on the

date of mailing if mailed or dispatched for delivery in accor-

dance with ORS 19.260(1)(a). If the Administrator receives

the initiating document within the time prescribed by law,

the person need not submit proof of the date of mailing.

If the Administrator does not receive the document within

the time prescribed [by] law and the person must rely on

the date of mailing as the date of delivery, the person must

file with the Administrator acceptable proof from the U.S.

Postal Service of the date of mailing. Acceptable proof from

the U.S. Postal Service of the date of mailing must be a

receipt for certified or registered mail or other class of service

for delivery within three calendar days, with the mail num-

ber on the envelope or on the item being mailed, and the date

of mailing either stamped by the U.S. Postal Service on the

receipt or shown by a U.S. Postal Service postage validated

imprint on the envelope received by the Administrator or the

U.S. Postal Service’s online tracking system.”

(Emphases added.) The rule immediately following, ORAP

1.35(1)(b)(iii)(B), provides in similar terms for delivery of an

initiating document by commercial delivery service “in accor-

dance with ORS 19.260(1)(a) for review,” but does not refer to

or define “acceptable” proof of the date of mailing.

422 State v. Chapman

The concurrence cited ORAP 1.35(1)(b)(iii)(A) in

support of its assertion that, in enacting ORS 19.260(1)(a)(B)

and (1)(b), the legislature intended that persons seeking to

use the mailing date of a notice of appeal as the filing date

“obtain” (and thus have in their physical possession) proof of

the mailing date from the USPS, and then certify and file

that proof with the appellate court. In a parenthetical, the

concurrence noted that the rule provides that “acceptable

proof” from the USPS must be “a receipt.” 298 Or at 622

(Aoyagi, J., concurring).

But whether the appellate rule can function as a

stand-in for the statutory provisions depends on whether the

rule reflects or conflicts with the requirements of the stat-

ute. As noted, ORS 19.260(1)(b) provides that, for purposes

of the proof-of-mailing-date requirements, “[a]ny record of

mailing or dispatch from the United States Postal Service

or the commercial delivery service showing the date that

the party initiated mailing or dispatch is sufficient proof of

the date of mailing or dispatch.” In the absence of any con-

textual or historical evidence to the contrary, we take that

broad pronouncement at face value. And taken at face value,

it cannot be squared with the appellate rule’s declaration

that a specific kind of proof—a “receipt for certified or regis-

tered mail or other class of service for delivery within three

calendar days” from the USPS and a dated postmark or PVI

label on the envelope—is required. In such circumstances,

the statutory provision governs, and the rule must simply

yield. Harding, 347 Or at 372-73.

We turn to the rule as it existed before the statutory

provisions at issue were enacted to determine whether any-

thing in that earlier version might support a conclusion that

the legislature intended a more limited meaning than the

“any record” wording seems to convey. As it turns out, ORAP

1.35(1)(c) (2013) provided for relation-back filing of notices of

appeal by mail in much the same terms that present-day

ORAP 1.35(1)(b)(iii)(A) does. The only substantive differ-

ence is in the earlier rule’s definition of “acceptable proof,”

which, rather than providing that acceptable proof “must

be a receipt for certified or registered mail or other class of

delivery within three days, [etc.],” referred only to “a receipt

for certified or registered mail, [etc.].” That was consistent

Cite as 367 Or 388 (2020) 423

with the statutory requirements at the time, because ORS

19.260(1) provided for relation back to the mailing date only

for notices of appeal sent by certified or registered mail.

Thus, the appellate rule’s definition of “acceptable proof”

apparently was designed with those specific mailing ser-

vices in mind. Given that fact, there is no reason to believe

that, when the 2015 Legislative Assembly added an entirely

new category of delivery services, in addition to certified

and registered mail, to which the relation-back benefit set

out in ORS 19.260(1) would apply, it would have intended to

impose the same proof requirement (a “receipt” in addition to

a postmarked or PVI-labeled envelope) that ORAP 1.35(1)(c)

(2013) imposed for certified or registered mail. Thus, noth-

ing in the pre-2015 iteration of ORAP 1.35 suggests a leg-

islative intent to shade the apparent meaning of the “any

record of mailing or dispatch” wording in ORS 19.260(1)(b)

or otherwise limit the kinds of proof that a person mailing

notice of appeal may rely on to obtain the statute’s relation-

back benefit.

One final piece of context that we consider is Modoc

Lumber Co. v. EBI Companies, 295 Or 598, 668 P2d 1225

(1983), in which this court attempted to construe the earli-

est version of ORS 19.260—then codified at ORS 19.028—

which allowed the filing date to relate back to the mailing

date if notice of appeal was sent by certified or registered

mail and the appellant “ha[d] proof from the post office of

[the] mailing date.” The notice of appeal in question had been

mailed to the Court of Appeals on the last day of the appeals

period, in an envelope that had been date-stamped by a law

firm’s USPS-authorized postage meter and to which a certi-

fied mail form that had not been date-stamped by the post

office had been affixed. The Court of Appeals dismissed the

appeal on the ground that the undated certified mail form

did not constitute “proof from the post office of [the] mailing

date,” and it refused to reinstate the appeal when the appel-

lant later submitted an affidavit from the local postmaster

stating that, based on the date of delivery, the notice must

have been mailed on the date shown on the postmark.

On review of the dismissal, this court accepted the

would-be appellant’s argument that dismissal for insuffi-

cient proof of the mailing date was inappropriate when the

424 State v. Chapman

permissible methods of proof were unclear. The court noted

that the statute did not specify any particular form of “proof

from the post office” and that the statute could not be pre-

sumed to require use of the particular forms provided by

the post office for registered or certified mail at the time

of the statute’s enactment “without vitiating the statute if

post office practice or terminology were to change.” Modoc

Lumber Co., 295 Or at 601-02. The court then noted a fur-

ther ambiguity that arose with respect to how the require-

ment that the appellant “ha[ve] proof” of the mailing date

related to an additional requirement, not expressly made

a condition of valid filing by mail, that “[p]roof of mailing

shall be certified by the appellant and filed thereafter with

the court to which the appeal is taken.” Id. at 602. In the

end, the court concluded that the proof requirement was suf-

ficiently uncertain that it should be clarified by rule, and

that, in the absence of such clarification, the appellant’s

appeal should be reinstated (and, by implication, that courts

should give appellants the benefit of any doubt as to what

proof is required until such time as the proof requirement

was clarified by rule). Id. at 602-03.

Modoc Lumber Co. was decided before the amend-

ments to ORS 19.260 at issue here were enacted by the

legislature, and it therefore provides no direct clues as to

how those amendments should be read. What the case does

show, however, is that, when the predecessor statute failed

to clearly state what proof was required, in provisions that

are nearly identical to those at issue here (that an appellant

must “ha[ve] proof from the post office of [the] mailing date”

and that “[p]roof of mailing shall be certified by the appel-

lant and filed thereafter”), the appellant was not forced to

bear the consequences of the statute’s lack of clarity: The

court declined to read in requirements for proof that had not

been expressly specified.

3. Legislative history

The version of ORS 19.260(1) that existed before

2015 contained requirements that the person sending a

notice of appeal by registered or certified mail “ha[ve] proof”

of the date of mailing and that and that proof of the mail-

ing date must be “certified” and “filed thereafter.” As noted

Cite as 367 Or 388 (2020) 425

above, 367 Or at 408, HB 2336 (2015) as it was originally

introduced added a new category—“mailed for delivery

within three calendar days” via USPS or a commercial deliv-

ery service—and imposed those same proof requirements on

the new category.

It was only later, when the bill was amended to refer

to “class[es] of delivery,” in response to concerns about clarity

expressed by a Judicial Department representative, that the

proof requirement was expanded to contain the statement:

“Any record of mailing or dispatch from the United States

Postal Service or the commercial delivery service showing

the date that the party initiated mailing or dispatch is suf-

ficient proof of the date of mailing or dispatch.” That state-

ment was not mentioned in any of the legislative committee

meetings about HB 2336. Neither were the proof require-

ments that attached to the new category ever mentioned.

In short, nothing in the legislative history of HB

2336 points to a particular legislative intention with respect

to those requirements. What can be gleaned from the legis-

lative history is what we already have mentioned—that the

legislature intended to clarify the process for filing notices

of appeal and prevent loss of appellate rights due to “tech-

nical defects,” not just for lawyers but also for ordinary per-

sons, including self-represented litigants.

4. Application

When considering the possible meanings that the

legislature intended with respect to the proof requirements

in ORS 19.260(1)(a)B) and (1)(b), it is difficult to get around

the broad and unambiguous statement in paragraph (1)(b)

that “[a]ny record of mailing or dispatch from the United

States Postal Service or the commercial delivery service

showing the date that the party initiated mailing or dis-

patch is sufficient proof of the date of mailing or dispatch.” A

postmark or PVI label evidently fits the bill. Thus, the crux

of the proof issue is whether, within the meaning of ORS

19.260(1)(a)(B), the person filing notice by first-class mail

can “ha[ve] proof” of the date of mailing and can satisfy the

requirement in ORS 19.260(1)(b) that proof of the mailing

date “be certified * * * and filed thereafter,” either by (1) mail-

ing the notice of appeal by first-class mail (thereby causing

426 State v. Chapman

it to be delivered to the court in a date-marked envelope

that is retained in the court’s record), coupled with filing

the ordinary certificate attesting to the method of delivery

and date of dispatch, or (2) mailing the notice of appeal by

first-class mail and thereafter obtaining and then filing a

copy of the date-marked envelope along with a certificate

attesting to that method of proof. We agree with defendant,

based on the statute’s wording, that the answer to that ques-

tion is yes—either of those alternatives is acceptable—and

that neither the statute’s context nor legislative history pre-

cludes that meaning.

In this case, defendant met the proof requirement.

She certified that she had filed her notice of appeal by using

the “United States Postal Service, ordinary first class mail,”

and she relied on the clearly dated PVI label on the mailing

envelope received by the court as proof of the date that she

had mailed her notice of appeal.

Should the legislature decide that something more

should be required to obtain the relation-back benefit of

ORS 19.260(1)—for example, that an appellant must physi-

cally possess a document showing proof of mailing a notice

of appeal, apart from having proof by virtue of a PVI label

or postmark with a mailing date on the envelope that con-

tained the notice—then it is free to enact amendments that

clarify that intention. But until that happens, an appellant

will satisfy the proof requirements by causing his or her

notice of appeal to be delivered to the appellate court in a

postmarked or PVI-labeled envelope and filing an ordinary

certificate of filing providing the date and the method of

filing.

IV. CONCLUSION

For the reasons set out above, we conclude that defen-

dant satisfied both the “class of delivery” requirement and

the proof-of-mailing-date requirements in ORS 19.260(1). It

follows that defendant’s notice of appeal is deemed filed on

the date that she mailed it, that the notice was timely filed,

and that the appeal was erroneously dismissed.

The decision and order of dismissal of the Court of

Appeals are reversed. The case is remanded to the Court of

Appeals for further proceedings.