Perez v. S. Jordan City

• Decision Date: 15 January 2013
• Docket Number: No. 20120019.,20120019.
• Citation: 296 P.3d 715,726 Utah Adv. Rep. 26
• Parties: Brett PEREZ, an individual, Petitioner, v. SOUTH JORDAN CITY, a Utah municipal corporation, and South Jordan City Appeal Board, Respondents.
• Court: Utah Supreme Court

296 P.3d 715

726 Utah Adv. Rep. 26

Brett PEREZ, an individual, Petitioner,

v.SOUTH JORDAN CITY, a Utah municipal corporation, and South Jordan City Appeal Board, Respondents.

No. 20120019.

Supreme Court of Utah.

Jan. 15, 2013.

Ryan B. Hancey, Salt Lake City, for petitioner.

Camille N. Johnson and Maralyn M. English, Salt Lake City, for respondents.

Justice LEE, opinion of the Court:

¶ 1 South Jordan City dismissed Brett Perez from his position as a city police officer. He appealed to the South Jordan City Appeal Board, which affirmed his dismissal. Perez then appealed the Board's decision to the Utah Court of Appeals. That court dismissed for lack of jurisdiction, concluding that Perez's petition for review was untimely under Utah Code section 10–3–1106(6).

¶ 2 We reverse, under a standard clarifying the nature of “the issuance of [a] final action or order” triggering the thirty-day period for a petition for review under section 1106(6). After finding Perez's petition timely under the clarified statutory standard, we remand for consideration of the merits of Perez's appeal.

I

¶ 3 Petitioner Brett Perez's fourteen-year employment as a South Jordan City police officer was terminated on November 12, 2009. Perez had allegedly violated the City's high-speed chase policy in a May 2009 incident, and he also had several prior disciplinary actions on file. Perez appealed his termination to the South Jordan City Appeal Board, which conducted a hearing in late May 2010.

¶ 4 The Appeal Board affirmed the City's termination decision in a ruling entitled “Decision and Order” dated June 7, 2010. The Order stated: “The Board hereby affirms the decision ... to terminate Officer Perez' employment.... The Board requests the City recorder certify this decision in accordance with the South Jordan City Employee Handbook.”

¶ 5 The Order was transmitted to Anna West, the City's recorder, on June 10, 2010. That same day, she certified the Order as final and mailed a copy to Perez, with an attached cover letter that stated:

Enclosed is a copy of the official Certified Decision & Order of the Employee Appeals Board Hearing held May 26, 2010 for Brett Perez v. South Jordan City that was delivered to my office today, June 10, 2010.

Section 4–06(5)e(4) of the South Jordan Employee Handbook states, “ any final action or order of the board may be appealed by either the employee or the City to the Utah Court of Appeals by filing with that court a notice of appeal no later than 30 days from the date of the issuance of the final action or order of the board.”

¶ 6 Perez filed a petition for review with the Utah Court of Appeals on July 9, 2010. In a split decision, that court dismissed for lack of jurisdiction, concluding Perez's petition was untimely under Utah Code section 10–3–1106(6) because it had been filed more than thirty days after the date (June 7) appearing on the Appeal Board's Decision and Order. See Perez v. S. Jordan City, 2011 UT App 430, ¶¶ 1, 8, 268 P.3d 877.

¶ 7 The majority opinion (per Judge Davis) reasoned by analogy from our decision in Dusty's, Inc. v. Utah State Tax Commission, 842 P.2d 868, 870 (Utah 1992), which interpreted the Utah Administrative Procedures Act to require an appeal within thirty days of “ ‘the date [an administrative agency's] order bears on its face.’ ” 2011 UT App 430, ¶ 4, 268 P.3d 877 (quoting Dusty's, 842 P.2d at 870). Finding no reason to interpret the Utah Municipal Code any differently, the court of appeals' majority held that “the thirty-day time period for filing a petition for review of the [South Jordan City Appeal] Board's decision commenced as of the date of the order” (June 7, 2010) and thus that the “petition for review, filed on July 9, 2010, was untimely.” Id. ¶¶ 4, 8. In so doing, the majority stressed the importance of establishing clear deadlines for appeals—a policy that in its view was “advanced by measuring filing deadlines from the date a decision is issued rather than the date it is mailed.” Id. ¶ 4.

¶ 8 Judge Orme dissented. He did “see a reason to interpret the Utah Municipal Code ... differently from the Utah Administrative Procedures Act.” Id. ¶ 10 (Orme, J., dissenting). Specifically, Judge Orme noted that the Municipal Code required a decision of the Appeal Board to be “certified to the City Recorder” before it could be final, and asserted that this “requirement ... is analogous to the requirement that judgments be filed with the court clerk before they become final and appealable.” Id. (citing Utah R. Civ. P. 58A(b)-(c)). Because the Board's decision in this case was not certified to the city recorder until June 10, Judge Orme deemed Perez's review petition timely. Id. ¶¶ 10–11. And as to the policy of certainty in the appeal process, Judge Orme suggested that a rule treating certification as issuance of a final order would “promote[ ] just as much certainty as the majority's view that issuance equates to the date of signing by the Board.” Id. ¶ 12.

¶ 9 Perez filed a petition for certiorari. We granted that petition, and now consider the timeliness of Perez's appeal. Because the dispositive questions are purely legal ones—concerning the construction of section 1106(6)—our review is de novo. See Manzanares v. Byington (In re Adoption of Baby B), 2012 UT 35, ¶ 41, ––– P.3d ––––, 2012 WL 4486225.

II

¶ 10 Under the Utah Municipal Code, a petition for review must be filed “within 30 days after the issuance of the final action or order of the appeal board.” Utah Code § 10–3–1106(6)(a)–(b). As with other procedures for appeals, the key threshold question under this provision is what triggers the time for appeal. A clear answer to that question is crucial, as the requirement of a timely appeal is jurisdictional. See Goggin v. Goggin, 2011 UT 76, ¶ 21, 267 P.3d 885.

¶ 11 In clarifying the statutory trigger for the appeal period under the Municipal Code, we look first to the rules and cases governing analogous procedures in other contexts. Building on those principles, we construe the Municipal Code in a manner that deems the order in this case to have issued on June 10, not June 7. We accordingly reverse the court of appeals' decision to the contrary, and remand for a determination of the merits of the appeal.

A

¶ 12 Because missteps in timing can deprive an appellate court of jurisdiction, the law takes care to define the event triggering the appeal period with certainty. For district court orders, for example, our rules require an appeal within 30 days after the date of entry of the judgment or order appealed from, Utah R.App. P. 4(a), and clarify that [a] judgment is complete and shall be deemed entered for all purposes ... when it is signed and filed with the clerk, who is required to immediately record the judgment in the register of actions and the register of judgments, Utah R. Civ. P. 58A(c). This rule advances the core policies of certainty and clarity by designating a clear date—filing with the clerk—that starts the appeal clock running. It also assures dissemination to the public—by requiring the clerk to immediately record the judgment on the public register.

¶ 13 The Administrative Procedures Act (APA) prescribes a parallel requirement for appeals from administrative actions. It requires a petition for judicial review of final agency action to be filed within 30 days after the date that the order constituting the final agency action is issued. Utah Code § 63G–4–401(3)(a).

¶ 14 We construed this provision in Dusty's, Inc. v. Utah State Tax Commission, 842 P.2d 868 (1992). The question in Dusty's concerned the timeliness of a petition for review of a final Tax Commission order signed and dated March 25, 1992, bearing a statement reiterating that [y]ou have thirty (30) days after the date of this order to file ... a petition for judicial review. Id. at 868–70. Although the order was dated March 25, it was not mailed until the next day, and it was not received by the petitioner until March 30. Id. at 869. Petitioner waited until April 27 to file the petition for review, claiming to have preserved a timely appeal because the petition was filed within thirty days of receipt of the Tax Commission's order. Id. at 868–69.

¶ 15 We disagreed, concluding that the order had “issued on the date it bore on its face” and noting that “[t]he Commission itself defined the date of issue when it postscripted the order with the usual legend found in all Tax Commission orders.” Id. at 870, 872. In so holding, we explained that the Commission had “accorded [the petitioner] notice of the time limitations, and the chosen procedure was well within the bounds of due process notions,” giving the petitioner “actual and constructive notice” which it “ignored ... at its peril.” Id. at 870.

¶ 16 Thus, our analysis in Dusty's again vindicated the policies of clarity and certainty. By tying the appeal period to the date of issuance and not receipt, we assured a clear timeframe for calculation of the appeal period. And because the order was required by law to be disseminated to the parties, we likewise provided a mechanism for issuance and notice to the public.

B

¶ 17 The same policies underlying our broader notice of appeal jurisprudence also inform our construction of the appeal framework prescribed in section 1106(6) of the Municipal Code. And those policies—together with the plain language of the governing statute—sustain a significant distinction between the outcome in Dusty's and the decision we reach here.

¶ 18 For reasons explained below—and unlike the order in Dusty's—the Appeal Board's order was not “issued” as of the date that it “bore on its face” (June 7). On that date, rather, the order was in the posture of a district court order that had been signed by a judge but not yet filed with the clerk. And because the order had not issued as of June 7, the appeal period was not triggered on that date. Instead, we deem the Appeal Board's order to have issued on June 10, and...