Woody v. State, ex rel. Dept. of Corrections, 78405

• Decision Date: 31 March 1992
• Docket Number: No. 78405,78405
• Citation: 833 P.2d 257,1992 OK 45
• Parties: Carl J. WOODY, Appellant, v. STATE of Oklahoma, ex rel. DEPARTMENT OF CORRECTIONS, Appellees.
• Court: Oklahoma Supreme Court

Page 257

833 P.2d 257

1992 OK 45

Carl J. WOODY, Appellant, v. STATE of Oklahoma, ex rel. DEPARTMENT OF CORRECTIONS, Appellees.

No. 78405.

Supreme Court of Oklahoma.

March 31, 1992.

Appeal from the District Court of Muskogee County; James E. Edmondson, Trial Judge.

The appellant, Carl J. Woody (prisoner), is incarcerated in the Jess Dunn Correctional Center. He allegedly placed a petition in error in the prison's mailbox on October 4, 1991, which to be timely filed must have been received by the Clerk of the Supreme Court on October 7, 1991. The petition in error arrived on October 9, 1991. We find that under the facts presented the petition in error was filed timely on the date that the prisoner delivered the petition in error to the prison authorities for forwarding to the Clerk of the Supreme Court. This appeal shall proceed in its ordinary course, in the manner contemplated by the Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, Ch. 15, App. 2.

Carl J. Woody, pro se appellant.

KAUGER, Justice.

The issue presented is whether delivery of a petition in error by a pro se prisoner to prison officials for mailing to the Clerk of the Supreme Court is timely under 12 O.S.1991 § 990A. We find that under the facts presented here that the petition in error was timely filed. ¹

FACTS

On September 3, 1991, Carl J. Woody, a pro se prisoner filed a petition for a writ of mandamus asking the trial court to direct the Oklahoma Department of Corrections to reverse and expunge the disciplinary proceedings against him. On September 6, 1991, the trial court dismissed the petition, and Woody appealed the trial court's order. On October 3, 1991, Woody's Affidavit In Forma Pauperis was notarized. On October 4, 1991, the prison trust fund officer provided the Statement of Prison Account, and the prisoner allegedly placed his petition in error in the prison's mailbox. The petition in error was received by the Clerk of the Supreme Court on October 9, 1991--two days late. This Court issued a show cause order directing the prisoner to show cause why the appeal should not be dismissed as untimely. On November 20, 1991, the prisoner responded to the show cause order, and he attached a sworn affidavit stating that he had placed the petition in error in the prison mailbox on October 4, 1991.

UNDER THE FACTS PRESENTED, THE PETITION IN ERROR WAS FILED TIMELY ON THE DATE THE PRISONER DELIVERED THE PETITION IN ERROR TO THE PRISON AUTHORITIES FOR FORWARDING TO THE CLERK OF THE SUPREME COURT.

This is the second time that we have visited the question of the timeliness of the filing of a petition in error by a pro se prisoner. In L'Aquarius v. Maynard, 634 P.2d 1310-11 (Okla.1981), the Court held that a prisoner's petition in error must be received by the Clerk on or before the due date. Under 12 O.S.1981 § 990, ² the statute in effect at the time of L'Aquarius, the mailbox rule was not recognized. The mailbox rule has been applicable to the commercial practice since Adams v. Lindsell, [1818] 1 B & Ald 681. ³ Under the rule, a contract becomes effective on the date acceptance is posted in the mail. In 1991, a modified application of this rule became a part of appellate procedure. Under 12 O.S.1991 § 990A, the filing of a petition in error may be accomplished either by delivery to the Clerk of the Supreme Court, or by sending it by certified mail with return receipt to the Clerk. The date of mailing, as shown by the postmark or other proof from the post office constitutes the filing date. ⁴

Here, the pro se prisoner asserts that he placed the petition in error in the prison's mailbox on October 4, 1991. The record does not include the envelope in which the petition was mailed. ⁵ Therefore, no information is available concerning the postmark or any other evidence of when the prison authorities in fact mailed it. However, the Affidavit In Forma Pauperis was notarized on October 3, 1991, and the Statement of Prison Account was signed by the trust fund officer on October 4, 1991. The prisoner submitted an unchallenged affidavit attesting that he placed the petition in error in the prison mailbox on October 4, 1991.

Were we to follow the L'Aquarius rationale under § 990A, pro se prisoners could be denied access to the court system ⁶ as well as equal protection of the law. ⁷ Because of the restraints imposed by imprisonment, a pro se prisoner would never be able to comply fully with the § 990A filing requirements. The pro se prisoner cannot take the steps which other litigants can to monitor the appeal process thereby ensuring that the court clerk receives the petition in error before the deadline. Unlike other litigants, a pro se prisoner cannot travel either to the Office of the Supreme Court Clerk to deliver the petition in error, or to the post office to mail the petition in error by certified mail. Because they are incarcerated, prisoners appearing without counsel must rely on the good faith of prison officials timely to mail their pleadings. If this trust is violated, either wilfully or neglectfully, the prisoner ordinarily is unable to prove who is at fault--the prisoner loses by default. ⁸

In a similar case, the United States Supreme Court in Houston v. Lack, 487 U.S. 266, 270-72, 108 S.Ct. 2379, 2382-83, 101 L.Ed.2d 245, 251-52 (1988), noted that the federal prisons have well-developed procedures for recording the date and time a prisoner leaves papers for mailing. The prison mail logs serve as a bright line to determine when the papers are given to the prison authorities. Our paperwork fails to disclose whether the Oklahoma prison system maintains a mail log. However, it is a procedure which should be in place.

The Houston Court held that a pleading is considered filed when it is delivered to prison officials by a pro se prisoner. The Court said:

"And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped 'filed' on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access--the prison authorities--and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice."

We find the Houston rationale to be persuasive, and that regardless of Houston, the Okla. Const. art. 2, § 6, mandates such a result. This provision, which has no analogue in the United States Constitution, probably originated with the Magna Carta which provides that "To no one will we sell, to...