A recent decision of the Iowa Supreme Court leads us back to the subject of notice. This is one of two fundamental elements of our constitutional premise of due process. I tell my students that due process is so important we have included it in the U.S. Constitution twice: "nor be deprived of life, liberty, or property, without due process of law," U.S. Const. amend. V. "nor shall any state deprive any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV, § 2. The essential difference is that the Fourteenth focuses on prohibiting state impairment of rights while the Fifth is focused on federal action. That may be an oversimplification, but will suffice here.
Notice is not a new subject for this blog. In Notice is Notice (August 2017), is the story of a claimant in North Dakota seeking a do-over after failing to open his mail. He argued that he only "received" notice when he eventually opened the envelope. That case reminded me of Patry v. Capps, 633 So.2d 9 (Fla. 1994), as does the recent decision from Iowa. In Patry, the Florida Supreme Court found fault with the enforcement of a statute requiring notice in a specific form. The question, it stressed is whether actual delivery occurred regardless of what the law says.
In another discussion of notice from North Carolina, the necessity of proving when something was received is the focus. This is discussed in Proving Appellate Jurisdiction (December 20180. Potentially, there is also some potential leeway in the due process discussion of notice when the situation is emergent, see Emergency Hearings and Due Process (July 2018). The sum of all of these seems to be that notice issues depend upon facts. It is interesting how many attorneys do not make a differentiation between the day-to-day and the demands of exigent circumstances.
But, we return to Iowa and Logan v. Bon Ton Stores, Inc., No. 19–0608, May 1, 2020. The injured worker there was unrepresented. The Court concluded that service by facsimile is sufficient service. The Court relied upon its own recent decision in Ortiz v. Loyd Roling Construction, 928 N.W.2d 651, 655 (Iowa 2019). There, a petition was emailed to opposing counsel. The Court concluded that the real issue was whether the "petition was actually received" and whether "prejudice resulted." Concluding both the actual receipt and absence of prejudice, the Court concluded that the purpose of the statute was satisfied. Notably, the plaintiff, Ortiz, "was represented by an attorney."
More recently in Logan, the Court saw similarities that were more persuasive than noted subtle differences. In this instance, Ms. Logan suffered an alleged work injury and had filed multiple petitions. She was unsuccessful. She later "filed a pro se petition with the Iowa District Court" for review of the Iowa "commissioner’s ruling." The document "was electronically filed," and was faxed to the employer/carrier's attorney. The attorney did not dispute that the petition fax was received but raised a procedural objection in support of the motion to dismiss.
The argument was founded on Iowa Code section 17A.19(2) (2019), which "requires" a petition to be mailed or personally served. By the time the matter came before the Court for hearing on the motion to dismiss, Ms. Logan had also served the petition on counsel by certified mail (albeit outside the ten-day period that was defined for service). The trial court acknowledged the “substantial compliance" argument of Ms. Logan but dismissed the case for failure to satisfy the statute.
In deciding Ortiz, the Appellate Court noted that when the subject statute was enacted, "electronic mailing was little more than a thought of a few." However, the use of email has expanded since, becoming ubiquitous. Its prevalence has become systemic in society, and the Court noted in the legal practice. It concluded that the "use of the term 'mail' should not preclude the word to apply to a means of communication that would later displace postal mail as the standard and most reliable means of routine, reliable communication.” Thus, in Ortiz, the Court essentially found email and mail indistinguishable. In deciding Logan, the Court acknowledged that the trial court in Logan made its decision before the Ortiz opinion was published.
The Court found similarity with a facsimile, noting "Fax, like email, would not have been on the legislature’s mind when it last amended Iowa Code section 17A.19(2) in 1981." The Court concluded that facsimile "did not flourish until the late 1980s and the 1990s." In so doing, the Court acknowledged that the facsimile was "invented in 1842." It also noted that the rules of Court ("civil procedure"), unlike the legislature's statute, allowed service by facsimile. Its explanation for its expansion of the exception seems founded less on any principle than on an inability to find some attractive distinction from Ortiz.
The Court noted that in Ortiz it had warned of more strict construction of the statute in the future. It suggests that its decision in Ortiz "was driven by a textual approach that interpreted 'mail' as including" the current email alternative. The Court saw this as a "linguistic stretch," and that admittedly "'fax' seems to be a stretch too far." The Court seems reluctant to extend the exception but also struggles with its perceptions and conclusions.
Abandoning its attempts to stretch the words or balance the linguistics, the Court moves on to an analysis more on par with the 25-year-old Patry analysis in Florida. It ultimately concluded the fax accomplished "substantial() compli(ance)" with the statute. Upon that conclusion, it held that the trial court should not have dismissed the petition faxed by this pro se litigant. In that regard, some will perceive the Court abandoning both Ortiz and what some see as the strained logic of its "email replaced mail" linguistic gymnastics.
Seemingly seeking a balm for its linguistic bruises, the Court then noted that perhaps the facsimile is even better notice than email, a superior method. It described the facsimile has become a "rarity these days." While an attorney might receive many emails, and could "miss" one "among the electronic clutter on his or her computer," an attorney "is less likely to miss a unicorn fax." While certainly, the Court noted, "the golden age of faxing has come and gone," perhaps it is a viable alternative. With the Logan decision, certainly, it now is, but in the broader context than a raft of specific exceptions, in the context of actual delivery shall suffice.
The opinion was not unanimous. Justice McDonald dissented (joined by Justice Oxley) stressing that "the service requirements are mandatory and jurisdictional." He argued that "a failure to comply with them deprives the district court of appellate jurisdiction," and that this should end the Court's analysis. His dissent acknowledges the "single exception" in Ortiz and essentially rebukes the Court for widening that exception. Justice McDonald would perhaps be an advocate of the old quote beware when "the exception becomes the rule." (Origin unknown).
Justice McDonald would more narrowly construe the Ortiz exception. He stresses two logical points in favor of the email exception and argues the fax fails them both. First, email has replaced U.S. mail and is thus a monitored and expected delivery mode. And, Ortiz concluded that "service by email substantially complied with (the) Code," when done in compliance with court rules.
Second, citing the specific language in Ortiz, Justice McDonald contends the majority decision violates the Court's decision in Ortiz. The exception in Ortiz "stated the 'substantial-compliance doctrine would not normally include using a means of communication different than provided under the statute.'” Thus, in allowing the email exception, McDonald contends the Court foreclosed further exceptions only to then further expand a year later in Logan.
Justice McDonald notes that Ortiz says any method other than email “would be unexpected and jeopardize the purpose of the statute," and then nonetheless endorses the unicorn facsimile. That in itself is an interesting point under the purview of stare decisis and predictability of judicial decisions. It is likely that both the majority and dissent would argue their allegiance to prior precedent, but in fact one of them is wrong.
Too often, courts forget that their role is to interpret statutes. That means to follow them as written unless they are internally ambiguous (something in the statute does not make sense or is contradictory) or externally ambiguous (the content contradicts another statute or constitution). Absent these, the legislative action should be given its due. The Florida Supreme Court abandoned this ideal twenty-five years ago in Patry (without word games). It now seems Iowa has followed suit with the erosion begun in Ortiz further empowered by Logan.
A side note to the majority opinion is a contention that judicial interpretation is subject to the constitutional separation of powers. As such, the Court noted, the legislature is free to correct any statutory interpretation of the judiciary merely by revising a statute to clarify the legislative purpose was not as interpreted by a given court decision. This is a well-cited maxim, and in casual observation is sound. But, in reality, the passing of a bill is a monumental undertaking requiring significant will, patience, and persistence. Thus, courts may perhaps often be wrong, but enjoy the collective balm of "well if we were wrong the legislature would fix it."
