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)
                                   

     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 calendar 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 misinterpreted 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. 

, 

 (2019).
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   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 circumstances, 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 dispatch 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, 

, 

 (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,
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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 defendant’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 delivery 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 material 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-classmail.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 delivery 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 business days would not differ from a delivery time of three
calendar days, it concluded that the existence of such circumstantial 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” established 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 calendar days. Id. at 611-14. And because first-class mail is
not designed, as a whole, to achieve delivery in three calendar days, but rather, in three business days, an appellant 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 legislative 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 delivery 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 legislative 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).
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           However, the concurring judge agreed with the
majority’s result because, in her view, defendant had not satisfied 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 “certif[y] … and file[ ] thereafter” proof of the date of mailing
or dispatch with the court to which the appeal is taken. 

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 requirements. 

        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 arguments 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 subsection (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 service). 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 delivery. 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 delivery 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 sufficient 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 calendar days.
      “(b) The date of serving the notice under this subsection is the date of mailing or dispatch. The party filing the
  notice must certify the date and method of service.”
(Emphases added.)
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             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 challenges 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 calendar 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 legislative history, as set out in State v. Gaines, 

,

 (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 category 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 relevant 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 deliveries 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 standard, 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 probability analysis, we are not persuaded by her underlying
contention that, in this context, “calculated” means merely
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“likely,” in the sense of “more probable than not.” Although
“likely” is, indeed, a meaning that appears among the dictionary 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 mathematically <~ tables> b : ascertained or estimated by calculation <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 honest 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 existence as a consequence of deliberate intent or planning
    4 : likely – used with complementary infinitive <a circumstance ~ 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 meanings 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 intricacy <~ 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 expression –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 complementary 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 construction of ORS 19.260(1)(a)(B). Defendant notes that the
word “calculated” is used in ORS 19.260(1)(a)(B) with a complementary 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 legislature 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 dictionary notes that the “likely” meaning of “calculated” typically is used with a complementary infinitive does not mean
that the word’s other meanings are not used with a complementary 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 complementary 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 responding 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 providing personal information from its records that are “reasonably calculated to reimburse the agency for the actual
cost of providing the information”); Moody v. Hurricane
Creek Lumber Co., 

, 

 (1981)
(stating that, in the phrase “assists or directs in the procuring 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 conduct 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
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defendant seems to contend for but rather a more definitive
and purposeful estimation, as determined from the standpoint 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 “calculated” 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 probable, 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 delivery are created and offered to the public by the USPS and
other delivery services, it necessarily is those delivery services 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 delivery 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., 

, 

 (2015); Pham v. Faber, 

, 

,
rev den, 

 (1998); Hoeck v. Schwabe, Williamson & Wyatt, 

, 

 (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 commercial 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 determine 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 delivery” chosen by the would-be appellant. But there is a dispute 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 interpretation, 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 interpretation. 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 particular notice of appeal, and that, in consequence, the provision
should be read to require mailing by a class of delivery calculated 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
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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 speaking, 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 understand 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 delivery within three calendar days.” The most natural and compelling 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 affirmatively 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 paragraphs 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 contextual 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 “registered 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, coupled 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 mailing 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 

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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 certified 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 alternatives 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 subparagraph (2)(a)(A), differs from the alternative provided in
subparagraph (1)(a)(A), in that it lists “[f]irst class mail, registered or certified mail” as within the provision’s application. 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 subparagraph (2)(a)(A) but not in subparagraph (1)(a)(A) indicates 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 conclusion 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, 

 (1868); Bade v. Hibberd, 

, 

(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, 

 (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 backdrop, 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 legislature 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 permitting the date of filing to relate back to the date of mailing, 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 section.” 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 certified mail and the appellant has proof from the post office
of such mailing date.”
Cite as 

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         In 1989, however, the legislature amended subsection (2) of former ORS 19.028 to differentiate the rule for
service by mail from the rule for filing by mail. The new subsection (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 filing 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 requirement, 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 dispatch 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 mailing 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 satisfied the proof of mailing date requirement more or less automatically. 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 leaving the specified delivery methods in the filing and notice
provisions in place, but adding to each the same generalized description of additional methods of delivery by mail
or delivery service that would qualify—“class[es] of delivery 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 “registered 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 precise specification of acceptable classes of mail a new category 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 

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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 subparagraph (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” constitute 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 proposition 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 acceptable 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 mailing. 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 understood 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 legislature 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 acceptable 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, 

, 

 (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 registered 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 delivery 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 commercial 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 documents. 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 

 (2020)                                      409

Silk suggested that enacting HB 2336 would solve the problem by allowing filing and service of a notice of appeal or
other initiating document by third-party commercial carriers to the same extent that it is allowed for other appellate
documents. 

 Doing so, according to Silk, “would avoid significant prejudice to litigants that result from a technical
defect in the filing method” and “also avoid a malpractice
trap for lawyers.” 

         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 appellate 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.”

 A committee member then asked Miller about why parties 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.” 

 (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 calendar 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 possible 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.” 

 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 “commercial carriers that had become common alternatives offering
expedited delivery,” and, while acknowledging that the bill
as enacted was not restricted to delivery by commercial carriers, it concluded that the categories of delivery that the
legislature intended to add included only “expedited delivery services” and, thus, not ordinary first-class mail. 

-11.
         Defendant draws a different message from the history of HB 2336’s enactment. In defendant’s view, the brief
comments to the legislative committees by Silk and Miller
Cite as 

 (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 citizens 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 process, repeatedly described it as allowing the relation-back
benefit for filing and serving notices of appeal to include dispatch 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 assisting practitioners and that, consistently with that focus,
Silk spoke about eliminating one particular “trap for the
unwary”—the malpractice trap that resulted from precluding 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 history 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 “expedited” 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 clarity 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 acceptable 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 commercial 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 general 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., 

, 

 (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 

 (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 testimony 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 original 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 clarifying 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, including 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 legislature 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 specified 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 administratively inconvenient, confusing for litigants, and, ultimately,
“irrational.” Id.
         We reject the premise that the consequences of viewing 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 administrative 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 outcomes 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 question within three calendar days. Although the state has
argued that the context surrounding the provision and an
implied legislative preference for uniformity and administrative 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 meaning above, in that it is the meaning that ordinary litigants
Cite as 

 (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 delivery 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 calendar 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 benefit offered by ORS 19.260(1)(a)(B) would apply. The USPS
publicizes its delivery time for first-class mail as “1-3 business 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 estimated 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 benefit 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 mailing 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 appellant “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 service. 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 “giving 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 delivery 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.”
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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 combination with the postmarked or PVI-labeled envelope), the provision 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 opinion 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 statutory text and context and any helpful legislative history.
Gaines, 

.
     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 mailing 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 second 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 ordinary 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 showing 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 provide 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 question 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 appellate court. Both meanings are possible: While one common
definition of “have” is “to hold in possession as property,”
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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 circumstances, while the appellant has never physically possessed
the proof, he or she has caused it to be filed with the appellate 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 appellant 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 certificate is attached on a specified date by a specified method, e.g.,
ordinary first-class mail, hand delivery, etc.). While attesting 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, keeping, 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 requirement as asking for certification of the underlying fact—
particularly when there is an apparently separate requirement 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 envelope 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 requirements 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 certifying 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, 

, 

 (1983).
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    2. Context
         Turning to the statute’s context, we first consider
ORAP 1.35(1)(b), a provision of the rules of appellate procedure 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 version 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 understanding the legislative intentions underpinning those provisions. 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 preceded 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 accordance 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 number 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 accordance 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 statute. 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 contextual 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 registered 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, 

.
         We turn to the rule as it existed before the statutory
provisions at issue were enacted to determine whether anything 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 difference 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 

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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 services 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, nothing in the pre-2015 iteration of ORAP 1.35 suggests a legislative 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, 

, 

(1983), in which this court attempted to construe the earliest 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 certified 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 appellant 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 insufficient 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 presumed 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., 

. The court then noted a further ambiguity that arose with respect to how the requirement 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.” 

. In the
end, the court concluded that the proof requirement was sufficiently 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). 

.
         Modoc Lumber Co. was decided before the amendments 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 appellant 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 mailing date must be “certified” and “filed thereafter.” As noted
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 (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 delivery 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 sufficient proof of the date of mailing or dispatch.” That statement was not mentioned in any of the legislative committee
meetings about HB 2336. Neither were the proof requirements 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 legislative 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 “technical defects,” not just for lawyers but also for ordinary persons, 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 dispatch 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) mailing 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 question is yes—either of those alternatives is acceptable—and
that neither the statute’s context nor legislative history precludes 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 physically 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 contained 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 defendant 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.