SUPREME COURT OF ARIZONA
En Banc
JAMES L. LEE, individually and ) Arizona Supreme Court
as the surviving husband of ) No. CV-07-0293-PR
TERESA C. LEE, deceased; KYUNG )
HEE KIM and TAE GUN KIM, ) Court of Appeals
children of HYEON BAI KIM and ) Division One
KYUNG NIM BEA KIM, deceased, ) No. 1 CA-CV 06-0145
)
Plaintiffs-Appellants, ) Maricopa County
) Superior Court
v. ) No. CV2005-012207
)
STATE OF ARIZONA, a governmental )
entity, )
) O P I N I O N
Defendant-Appellee. )
)
)
Appeal from the Superior Court in Maricopa County
The Honorable Kenneth L. Fields, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
215 Ariz. 540, 161 P.3d 583 (2007)
VACATED
________________________________________________________________
LAW OFFICE OF SCOTT E. BOEHM, P.C. Phoenix
By Scott E. Boehm
And
LAW OFFICE OF GLYNN W. GILCREASE, P.C. Tempe
By Glynn W. Gilcrease, Jr.
Peter M. Gorski
Attorneys for James L. Lee, individually and as the
surviving husband of Teresa C. Lee, deceased; Kyung
Hee Kim and Tae Gun Kim, children of Hyeon Bai Kim and
Kyung Nim Bea Kim, deceased
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By George Crough, Assistant Attorney General
Daniel P. Schaack, Assistant Attorney General
Catherine O’Grady, Special Assistant Attorney
General
Attorneys for the State of Arizona
LAW OFFICES OF CHARLES M. BREWER, LTD. Phoenix
By Charles M. Brewer
John B. Brewer
David L. Abney
Dane L. Wood
Attorneys for Amicus Curiae Charles M. Brewer, Ltd.
JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Eileen Dennis GilBride
Lori L. Voepel
Attorneys for Amici Curiae Arizona Counties Insurance Pool,
Arizona School Risk Retention Trust, and City of Phoenix
________________________________________________________________
B A L E S, Justice
¶1 Before suing the state or its subdivisions, a person
generally must file a notice of claim with the prospective
defendant in compliance with Arizona Revised Statutes (“A.R.S.”)
section 12-821.01(A) (2003). We hold that proof of mailing a
notice of claim may create a material issue of fact as to its
filing even though the State denies receiving the notice.
I.
¶2 James Lee’s car crashed through a highway guardrail;
the accident seriously injured Lee and resulted in the death of
three passengers. Lee and representatives of the passengers
(collectively “Lee”) filed a complaint against the State,
2
alleging negligent design, construction, and maintenance of the
roadway and guardrail. The State moved to dismiss the
complaint, claiming it never received a notice of claim as
required by A.R.S. § 12-821.01(A).
¶3 In response, Lee submitted a “proof of service” signed
under penalty of perjury by a staff member of his attorney’s
firm, attesting that the notice had been sent to the attorney
general via regular United States mail more than a week before
the statutory deadline for its receipt. See A.R.S. § 12-
821.01(A) (requiring filing of claim “within one hundred eighty
days after the cause of action accrues”). The superior court
granted the State’s motion and dismissed Lee’s claim.
¶4 The court of appeals affirmed, reasoning that the
statute required Lee to show that the notice actually arrived at
the attorney general’s office without relying on the common law
rule that a letter properly mailed is presumed to reach its
destination. Lee v. State, 215 Ariz. 540, 543 ¶¶ 10-12, 161
P.3d 583, 586 (App. 2007). Because Lee had no evidence of
delivery other than the fact of mailing, the court concluded
that the “plaintiffs did not raise a material question of fact
regarding whether the State actually received their notice.”
Id. at 545 ¶ 17, 161 P.3d at 588.
3
¶5 We accepted review to address this issue of statewide
importance. We have jurisdiction under Article 6, Section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
A.
¶6 Arizona law requires that “[p]ersons who have claims
against a public entity . . . shall file claims with the person
or persons authorized to accept service for the public entity
. . . as set forth in the Arizona rules of civil procedure.”
A.R.S. § 12-821.01(A). If a claimant fails to file the notice
of claim as required, the claim is barred. Id.
¶7 Both Lee and the State agree that “file” means actual
delivery of the notice of claim to a person authorized to accept
service. Both also agree that Lee was free to use regular mail
to accomplish the filing. The dispute turns on the proof
required to show that a filing occurred when the State denies
receiving the notice of claim. The State argues that if it
denies receipt and the claimant lacks contrary evidence other
than proof of mailing, the claim must be dismissed under A.R.S.
§ 12-821.01(A). We disagree.
¶8 We have long recognized what is best termed a “mail
delivery rule.” This common law rule has two components: one a
presumption, and one a rule regarding the sufficiency of
evidence. Under the mail delivery rule, there is a presumption
4
that a “letter properly addressed, stamped and deposited in the
United States mail will reach the addressee.” State v. Mays, 96
Ariz. 366, 367-68, 395 P.2d 719, 721 (1964); see also Rosenthal
v. Walker, 111 U.S. 185, 193 (1884) (“The rule is well settled
that if a letter properly directed is proved to have been . . .
put into the post-office . . . it is presumed . . . that it
reached its destination . . . .”). That is, proof of the fact
of mailing will, absent any contrary evidence, establish that
delivery occurred. If, however, the addressee denies receipt,
the presumption of delivery disappears, but the fact of mailing
still has evidentiary force. Andrews v. Blake, 205 Ariz. 236,
242 ¶ 22 n.3, 69 P.3d 7, 13 n.3 (2003). The denial of receipt
creates an issue of fact that the factfinder must resolve to
determine if delivery actually occurred. Id.
¶9 The State argues that the mail delivery rule has no
effect here because A.R.S. § 12-821.01(A) requires that a
claimant “file” the notice of claim. This language, the State
contends, means that Lee must present direct evidence that the
notice was timely delivered, for instance, by presenting
evidence of the receipt of a claim sent by certified mail or of
physical delivery by the claimant or a courier. In other words,
the State interprets “file” as implicitly limiting the type of
proof that will suffice to show delivery of the notice.
5
¶10 By their terms, however, neither the word “file” nor
the statute as a whole speaks to the proof required to show
delivery. The State would have us read into the word “file” not
only the requirement of actual delivery, but also an abrogation
of the long-held understanding that mail properly sent will
reach its destination. Such an interpretation goes against our
prior conception of the mail delivery rule. In Andrews, we
noted that the presumption would apply even though we
interpreted the lease-option contract at issue to require
“actual receipt . . . of [the lessee’s] written exercise of the
option.” 205 Ariz. at 241 ¶ 18, 69 P.3d at 12. The State
attempts to distinguish Andrews because it concerned a private
contract rather than a specific statutory filing requirement.
This distinction is unpersuasive. Andrews is instructive
precisely because it demonstrates that an “actual receipt”
requirement, like the one imposed by A.R.S. § 12-821.01(A), is
compatible with the mail delivery rule.
¶11 Indeed, the State’s interpretation ignores the logic
underlying the mail delivery rule. The rule is not a legal
fiction; it reflects the commonly recognized fact that the mail
almost always works. Thus, although a denial of receipt rebuts
the legal presumption that a piece of mail was received, a
factfinder may still infer from the fact of mailing that the
mail did reach its destination. That is, even absent any
6
presumption of receipt, mailing remains probative evidence that
a letter was actually delivered to the designated recipient.
¶12 The legislature could have specified what sort of
delivery constitutes a filing, or restricted the evidence
relevant to showing something was filed, but it did not. New
York law, for example, requires many claims to “be filed with
the clerk . . . and . . . served upon the attorney general . . .
either personally or by certified mail, return receipt
requested.” N.Y. Ct. Cl. Act § 11(a)(i) (McKinney Supp. 2008).
In New York, regular mail is therefore an insufficient method of
filing a claim against the state and is not evidence that
something was filed. See Philippe v. State, 669 N.Y.S.2d 759,
760 (App. Div. 1998) (affirming dismissal when claimant used
ordinary mail to serve the state). In contrast, Arizona law
does not require formal service and allows claimants to mail
their notices to the state.1
¶13 The dissent argues that the statute precludes Lee from
relying on proof of mailing because it requires a claimant to
“file . . . as set forth in the Arizona rules of civil
procedure.” A.R.S. § 12-821.01(A). Dissent ¶¶ 26-28. The
dissent’s reading of the statute omits critical language.
1
The State encourages claimants to mail their notices: the
attorney general’s standard notice of claim form instructs
claimants to mail the form to the attorney general.
7
Claimants must “file claims with the person or persons
authorized to accept service for the public entity or public
employee as set forth in the Arizona rules of civil procedure.”
Id. (emphasis added). Arizona Rules of Civil Procedure 4.1(h)-
(j) clearly “set forth” the “person or persons authorized to
accept service” for various public entities. By contrast,
nothing in the rules defines how filing must occur. The rules
do not prohibit mail as a form of filing nor do they indicate
that mailing, though probative, is inadmissible to prove filing.
We agree with the dissent that to successfully file requires
receipt, but we decline to interpret “file” to forbid a claimant
from proving a contested filing by pointing to the fact of
mailing.
¶14 The dissent believes that the reference to the rules
of procedure “mandates that we treat the filing requirement
under the notice of claims statute in the same manner as we and
other jurisdictions have consistently treated filing with a
court.” Dissent ¶ 32. The dissent then points to several cases
that refuse to “apply the mailbox rule to the filing of a
document with the clerk of court.” Id. These cases, however,
are inapposite because of the differences between a court clerk
and a party to the litigation.
¶15 Lee’s position with respect to the State is not
“identical to that of a civil litigant filing a document with
8
the clerk of court.” Dissent ¶ 34. The clerk of the superior
court, for example, is a constitutionally authorized officer of
a neutral body, one who is statutorily required to “take charge
of and safely keep . . . all books, papers and records which may
be filed.” A.R.S. § 12-282(A) (2003 & Supp. 2007); Ariz. Const.
art. 6, § 23. There is no similar position in the attorney
general’s office or in many of the local-level public offices
that accept notices of claim.
¶16 A government office’s inability to locate a notice of
claim may indicate it was never received, but it may also
indicate that it was received and later misplaced. Which
conclusion is more plausible in any given case will depend on
the circumstances of the initial mailing and the intended
recipient’s procedures, if any, for recording the receipt of
mail.
¶17 The notice of claims statute directs claimants to file
with a potential defendant. We do not think that the statute
(either as drafted or as elided by the dissent) requires a court
to treat a defendant’s denial of receipt as dispositive, just as
we do not treat the plaintiff’s proof of mailing as conclusively
establishing that the filing did occur when receipt is denied.
This is the sort of factual dispute appropriate for resolution
9
by a factfinder.2 The State and its amici also urge the Court to
adopt the State’s interpretation of “file” because it best
serves the purposes of A.R.S. § 12-821.01. A notice of claim
serves to give the government notice of potential liability, an
opportunity to investigate claims, the chance to avoid costly
litigation through settlement, and assistance in budgeting.
Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293,
295 ¶ 6, 152 P.3d 490, 492 (2007). The State and amici argue
that these purposes can be met only if the State actually
receives the notice; thus, the claimant should bear the full
risk of ensuring actual receipt without resort to the mail
delivery rule.
¶18 There is some force to the State’s policy arguments
but we are not convinced they are embraced in A.R.S. § 12-
821.01(A). We agree that the statutory intent can be served
only if the State receives the notice of claim, but absent a
clearer legislative directive than the word “file,” we will not
deprive Lee of the benefit of the mail delivery rule, a
2
We decline to address whether a plaintiff’s compliance with the
requirements of A.R.S. § 12-821.01(A) regarding timely delivery
of the notice of claim is an issue for the court or for the jury
because the parties did not contest this issue below. Compare
Bonner v. Minico, Inc., 159 Ariz. 246, 254, 766 P.2d 598, 606
(1988) (noting that the trial court may resolve “jurisdictional
issues, including those which involve disputed issues of fact”
which do not go to the merits of the case), with Pritchard v.
State, 163 Ariz. 427, 433, 788 P.2d 1178, 1184 (1990)
(concluding that compliance with former version of the notice of
claims statute was procedural and not jurisdictional).
10
“traditional means of weighing evidence in order to determine
whether receipt occurred.” Barnett v. Okeechobee Hosp., 283
F.3d 1232, 1239 (11th Cir. 2002) (internal quotation marks and
citation omitted).
¶19 We hold that a filing under A.R.S. § 12-821.01(A) may
be accomplished through the regular mail, and proof of mailing
is evidence that the governmental entity actually received the
notice. The implications of our holding are straightforward.
If a claimant presents proof of proper mailing – timely sent,
correctly addressed, and postage paid – and the public entity
denies receipt, it is for the factfinder to determine if the
claim was in fact received within the statutory deadline. If
the claim was so received, and otherwise satisfies the statutory
requirements, then the claimant may pursue the case on the
merits. In contrast, despite facts from which a reasonable
factfinder could conclude the notice of claim did reach the
public entity, the dissent would extinguish the claim based
merely on a defendant’s testimony that it has no record of
receipt.
B.
¶20 Because we conclude that proof of mailing is evidence
that the State received Lee’s notice of claim, we must determine
whether the trial court properly dismissed Lee’s lawsuit. We
11
treat the State’s motion to dismiss as one for summary judgment
because the parties presented material outside the pleadings.
Ariz. R. Civ. P. 12(b). Judgment for the State is therefore
appropriate only if there are no genuine issues of material fact
and, with all reasonable inferences drawn in favor of Lee, a
reasonable factfinder could agree only with the State’s
position. Ariz. R. Civ. P. 56(c); see Orme Sch. v. Reeves, 166
Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990).
¶21 The State supported its motion by submitting an
affidavit from an employee of the attorney general’s office who
avowed that she searched the office’s record of notices received
and found none from Lee. Lee, in turn, provided a “proof of
service” signed under penalty of perjury and created on the day
the notice was purportedly mailed, indicating that Lee’s
attorney sent the notice, postage prepaid, to the attorney
general well before the deadline for its receipt.
¶22 Applying the mail delivery rule as outlined in Andrews
v. Blake, a reasonable factfinder could reject the State’s
contention that a notice was never filed. After Lee presented
proof sufficient to establish the mailing of the notice of
claim, the State’s denial of receipt rebutted the otherwise
conclusive presumption of delivery, but did not conclusively
establish non-receipt. Rather, Lee’s proof of mailing and the
State’s denial of receipt created a material issue of fact.
12
III.
¶23 For the foregoing reasons, we reverse the judgment of
the superior court, vacate the opinion of the court of appeals,
and remand to the superior court for proceedings not
inconsistent with this opinion.
_______________________________________
W. Scott Bales, Justice
CONCURRING:
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
M c G R E G O R, Chief Justice, dissenting:
¶24 I respectfully dissent. The majority holds that a
claimant’s assertion that he timely mailed a claim against the
state is sufficient, if accepted by a trier of fact, to
establish that the claimant complied with the filing requirement
of A.R.S. § 12-821.01.A, even if the claimant provides no
evidence to counter the state’s assertion that it did not
receive the claim. In my view, that holding fails to give
effect to the language and purpose of the statute, extends the
13
application of the mailbox rule far beyond its prior use in
Arizona, and adopts an approach overwhelmingly rejected by other
jurisdictions applying comparable notice of claim statutes. I
would conclude that the filing requirement of § 12-821.01.A
precludes use of the mailbox rule and that evidence of mailing
alone, therefore, neither satisfies the statute’s filing
requirement nor creates a material issue of fact.
I.
A.
¶25 The legislature directs the manner in which a claimant
may bring suit against the state. Ariz. Const. art. 4, pt. 2, §
18; see State v. Barnum, 58 Ariz. 221, 231, 118 P.2d 1097, 1101
(1941) (stating that the state is immune from suit “except upon
its own terms and conditions”). In A.R.S. § 12-821.01, the
legislature set forth specific requirements with which a
claimant must strictly comply:
Persons who have claims against a public entity or a
public employee shall file claims with the person or
persons authorized to accept service for the public
entity or public employee as set forth in the Arizona
rules of civil procedure . . . .
A.R.S. § 12-821.01.A (emphasis added). Unless a claimant
strictly complies with the statute’s filing requirement, a claim
against the state is statutorily barred. Id.; Deer Valley
Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 299 ¶ 21,
14
152 P.3d 490, 496 (2007) (requiring strict compliance and
rejecting reasonableness standard); Falcon ex rel. Sandoval v.
Maricopa County, 213 Ariz. 525, 527 ¶ 10, 144 P.3d 1254, 1256
(2006) (requiring strict compliance and rejecting actual notice
and substantial compliance). In determining the meaning of the
term “file,” the Court must “give effect to the legislature’s
intent,” Parrot v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶
7, 130 P.3d 530, 532 (2006) (citation omitted), looking first to
the statutory language as the “most reliable index of a
statute’s meaning,” Houser, 214 Ariz. at 296 ¶ 8, 152 P.3d at
493.
¶26 The majority justifies its expansive interpretation of
the statute’s filing requirement and the mailbox rule by noting
that the legislature could have restricted the meaning of “file”
but did not. Op. ¶ 12. But the legislature did clearly
restrict the definition of “file.” It did so by requiring that
a claimant file his notice of claim “as set forth in the Arizona
rules of civil procedure.”3 A.R.S. § 12-821.01.A. The statutory
3
The majority opinion argues that this interpretation
misreads the statute because the phrase “as set forth in the
Arizona rules of civil procedure” must apply only to the phrase
“person or persons authorized to accept service for the public
entity” and not to the term “filing.” Op. ¶¶ 13-17. The absence
of commas in the relevant portion of the statute, however, makes
the better reading of the statute that the phrase “as set forth
in the rules” applies to the main clause that precedes it. That
15
language mandates a filing requirement consistent with that
required under the rules of civil procedure for commencing an
action. See Ariz. R. Civ. P. 3 (“A civil action is commenced by
filing a complaint with the court.”).
¶27 The meaning of “file” within the rules of civil
procedure is neither obscure nor open to question.
Traditionally, “file” requires actual delivery and receipt of a
claim. See Houston v. Lack, 487 U.S. 266, 274 (1988)
(acknowledging the “general rule” that receipt by a court clerk
constitutes filing); United States v. Lombardo, 241 U.S. 73, 76
(1916) (“Filing . . . is not complete until the document is
delivered and received. ‘Shall file’ means to deliver to the
office, and not send through the United States mails.”);
Casalduc v. Diaz, 117 F.2d 915, 916 (1st Cir. 1941) (“‘Filing’
means delivery of the paper into the actual custody of the
proper officer.”); Creasy v. Coxon, 156 Ariz. 145, 148, 750 P.2d
903, 906 (App. 1987) (“[T]he claimant must show that delivery
was actually made.”).
is, the statute directs that “persons . . . shall file claims
. . . with the person authorized to accept service . . . as set
forth” in the rules of civil procedure. If the legislature
intended that the “as set forth” phrase modify only the “with
the person” phrase, the statute should have referred to the
“person set forth” in the rules, rather than use the phrase “as
set forth in the rules.” The use of as implies that all the
matters that come before should be done as set forth in the
rules of procedure.
16
¶28 The mailbox rule simply does not apply to determine
whether a document was “filed.” As far as I can determine,
Arizona has never applied the mailbox rule to extend the time
for filing a document used to initiate a civil proceeding and
has never regarded a mailing affidavit as evidence sufficient to
establish actual delivery and receipt. None of the authorities
relied upon by the majority even suggest that the mailbox rule
applies to a claim “filed” in accord with the rules of civil
procedure. Rather, the cases the majority cites apply the
mailbox rule to establish a party’s receipt of various
documents. See Rosenthal v. Walker, 111 U.S. 185, 193 (1884)
(using the mailbox rule to show the plaintiff’s receipt of
letters mailed to him); Andrews v. Blake, 205 Ariz. 236, 242 n.3
¶ 22, 69 P.3d 7, 13 n.3 (2003) (allowing the mailbox rule to
create a presumption of receipt by the plaintiff of the
defendant’s letter exercising an option to purchase land); State
v. Mays, 96 Ariz. 366, 367-69, 395 P.2d 719, 720-22 (1964)
(applying the mailbox rule to show notice of a closed bank
account to support a conviction of drawing checks with the
intent to defraud).
¶29 Courts most frequently consider the relationship
between mailing and filing when documents are mailed within the
time permitted for filing, but are received after the deadline
for filing has passed. In such cases, Arizona courts have
17
consistently rejected the suggestion that mailing a document
within the requisite time limit constitutes timely filing. In
1928, for example, this Court refused to set aside a default
judgment in Garden Development Company v. Carlaw, 33 Ariz. 232,
234, 263 P. 625, 625 (1928). In Carlaw, the Court concluded
that the appellant, who waited “until the eve of default day” to
mail his answer, which was received late by the clerk, was not
excused of his untimely filing. Id. By waiting to mail the
document, the appellant was “hazarding the chance that it would
reach the clerk by mail on time to prevent default.” Id.
¶30 The court of appeals has also held that mailing within
a time limit does not satisfy a timely filing requirement. In
Todd v. Todd, the appellant mailed a notice of appeal, which the
clerk’s office stamped as having been filed one day late. 137
Ariz. 404, 407-08, 670 P.2d 1228, 1231-32 (App. 1983). The
court stated: “While the evidence would support a prima facie
showing that the notice of appeal was timely mailed . . . there
is no evidence to indicate that this mailing was timely received
in the Maricopa County Superior Court.” Id. at 407, 670 P.2d at
1231. The appellant, thus, did not sustain his burden of proof
that the notice was timely received. Id. at 408, 670 P.2d at
1232.
¶31 In an analogous case, Smith v. Industrial Commission,
the court of appeals refused to interpret a workers’
18
compensation statute as equating mailing with applying for a
petition for a writ of certiorari. 27 Ariz. App. 100, 101-02,
551 P.2d 90, 91-92 (1976). The relevant statute in Smith stated
that a decision became final unless a party applied for a writ
of certiorari within thirty days. Id. at 101, 551 P.2d at 91.
The petitioner argued that his petition for writ of certiorari,
mailed within the thirty-day period, satisfied the statute
because the statute required only that he “apply,” as opposed to
“file” his petition within thirty days. Id. at 101-02, 551 P.2d
at 91-92. The court rejected his contention, reasoning that
“[t]here is nothing in the meaning of the word ‘apply’ which
would permit compliance by mailing any more than there is in the
word ‘file.’ Moreover, we are referred to no instances where
court proceedings are deemed commenced by the act of mailing.”
Id. at 102, 551 P.2d at 92. The court concluded: “To read the
word ‘apply’ as petitioner would have us read it would be to
indulge in verbal legerdemain.” Id.
¶32 Other jurisdictions also have repeatedly refused to
apply the mailbox rule to the filing of a document with the
clerk of court. See Raymond v. Ameritech Corp., 442 F.3d 600,
604 (7th Cir. 2006) (“The posting of papers addressed to the
clerk’s office does not constitute ‘filing.’”); McIntosh v.
Antonino, 71 F.3d 29, 36-37 (1st Cir. 1995) (documents not
timely filed when mailed on the last day of the statute of
19
limitations, and received on the following day); Torras Herreria
y Construcciones, S.A. v. M/V Timur Star, 803 F.2d 215, 216 (6th
Cir. 1986) (“Filings reaching the clerk’s office after a
deadline are untimely, even if mailed before the deadline.”);
Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1472 (11th Cir.
1984) (“[S]imply depositing the notice in the mail is not the
same as filing it.”); In re Bad Bubba Racing Prods., Inc., 609
F.2d 815, 816 (5th Cir. 1980) (recognizing the “‘well-
established’ principle” that “deposit of notice in the mail is
not equivalent to filing it”); Allen v. Schnuckle, 253 F.2d 195,
197 (9th Cir. 1958) (“Delivery . . . to a post office employee
did not constitute a filing.”); see also Charles Alan Wright &
Arthur R. Miller, 16A Federal Practice and Procedure § 3949.1
(3d ed. 1999) (stating the general rule that “deposit in the
mail is not sufficient of itself to constitute filing with the
clerk” and the “one exception” for pro se inmates). The
legislative direction that claims be “filed” as required by the
rules of procedure, made in the plain language of A.R.S. § 12-
821.01.A, mandates that we treat the filing requirement under
the notice of claim statute in the same manner as we and other
jurisdictions have consistently treated filing with a court.
¶33 Until today’s decision, the sole exception to the
formal filing requirement involved the “prisoner mailbox rule,”
recognized by the United States Supreme Court in 1988. See
20
Houston, 487 U.S. at 276. Under this exception, pro se inmates
can comply with a “filing” requirement by delivering a document
“to the prison authorities for forwarding to the court clerk.”
Id. In reaching its decision, the Court discussed the “large
body of lower court authority” that has rejected the mailbox
rule, id. at 274, and contrasted the unique situation of pro se
inmates with that of general civil litigants, id. at 270-71,
275. Unlike pro se inmates, the Court explained, civil
litigants are not forced to risk their filings with “the
vagaries of the mail and the clerk’s process for stamping
incoming papers,” but instead “can follow [their] 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.” Id. at 271. Arizona has
applied the prisoner mailbox rule of Houston on several
occasions. See State v. Goracke, 210 Ariz. 20, 23 ¶ 10, 106
P.3d 1035, 1038 (App. 2005) (petition for review to the Arizona
Supreme Court); State v. Rosario, 195 Ariz. 264, 266 ¶ 10, 987
P.2d 226, 228 (App. 1999) (petition for post-conviction relief);
Mayer v. State, 184 Ariz. 242, 244, 908 P.2d 56, 58 (App. 1995)
(notice of appeal). We have not, however, adopted any other
exception under which mailing a document fulfills a requirement
that the document be filed.
21
¶34 I see no justification for expanding the pro se inmate
exception to claimants under A.R.S. § 12-821.01.A. The
situation of an ordinary claimant submitting a notice of claim
to the state is identical to that of a civil litigant filing a
document with the clerk of court. Ensuring that the state
receives a notice of claim is an easy task. Like a civil
litigant, a claimant can personally deliver the claim, send the
claim via certified mail, or contact the state to verify receipt
of the claim. Although a claimant is free to choose to send a
claim by regular mail, that choice does not excuse the failure
of the claimant or his attorney to ascertain whether the state
received the claim. Given the plain language of the statute, it
is not for this Court to excuse a claimant or his lawyer from
complying with the statutory requirements.4
B.
¶35 The majority’s approach not only fails to follow the
clear language of the statute by “reading out” the requirement
that claims be filed as required by the rules of civil
procedure, but also chooses an interpretation inconsistent with
4
Because this opinion involves the interpretation of a
statute, the Legislature, if it chooses to do so, can amend the
language of A.R.S. § 12-821.01.A to limit the methods through
which a claimant must file a claim against the government. See
Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 17, 69 P.3d 23, 27
(2003) (“[I]f the court interprets the statute other than as the
legislature intended, the legislature retains the power to
correct us.”).
22
the purpose of the claims statute. As we have recognized
several times, A.R.S. § 12-821.01.A exists to provide notice to
the state “to allow the public entity to investigate and assess
liability, to permit the possibility of settlement prior to
litigation, and to assist the public entity in financial
planning and budgeting.” Falcon, 213 Ariz. at 527 ¶ 9, 144 P.3d
at 1256 (quoting Martineau v. Maricopa County, 207 Ariz. 332,
335-36 ¶ 19, 86 P.3d 912, 915-16 (App. 2004)). These functions
are frustrated, indeed made impossible to accomplish, if the
Court allows an assertion of mailing to substitute for actual
receipt of a notice of claim.
¶36 If a notice of claim is not filed with the state, the
state has no opportunity to investigate or assess the claim’s
validity and no ability to engage in financial planning and
budgeting. In stark contrast to the ease with which a claimant
can ensure the proper filing of a notice of claim, the state,
absent actual receipt of a claim, has no ability at all to carry
out its duty to evaluate a claim against it. The Court should
avoid a statutory construction that prevents or makes unlikely
carrying out the statute’s purpose.
¶37 The majority’s conclusion that a claimant can
potentially satisfy the filing requirements with mere proof of
mailing also is inconsistent with this Court’s insistence that
claimants strictly comply with the notice of claim statute. In
23
Falcon, the claimant delivered a notice of claim to one member
of the county board of supervisors, rather than to the chief
executive officer of the board. Id. at 526 ¶ 2, 144 P.3d at
1255. We held that service on one member of the board, even if
it provided actual notice of a claim, did not comply with the
notice requirements and did not serve the purpose of the
statute. Id. at 531 ¶ 34, 144 P.3d at 1260. The claim was
therefore statutorily barred. Id. In reaching our decision, we
emphasized the strict notice of claim requirements and stated:
“Actual notice and substantial compliance do not excuse failure
to comply with the statutory requirements of A.R.S. § 12-
821.01(A).” Id. at 527 ¶ 10, 144 P.3d at 1256.
¶38 Similarly, in Houser, we held that § 12-821.01.A
barred a properly filed notice of claim because the notice did
not include a specific settlement amount, as required by the
statute. 214 Ariz. at 296-97 ¶ 11, 152 P.3d at 493-94. We
rejected the “reasonableness standard” urged by the claimant.
Id. at 299 ¶ 21, 152 P.3d at 496. We reasoned that “fundamental
principles of statutory construction do not allow us to ignore
the clear and unequivocal language of the statute,” which the
legislature intended to “establish specific requirements that
must be met for a claimant to file a valid claim with a
government entity.” Id. (citation and internal quotation
omitted).
24
¶39 Rather than follow the approach of Falcon and Houser,
which require strict compliance with the notice of claim
statute, the majority’s opinion rather inexplicably allows far
less than strict compliance with the filing requirement itself,
the initial and most indispensible requirement within the notice
of claim statute.
C.
¶40 The majority’s approach not only seems inconsistent
with the language and purpose of Arizona’s statute, but also
departs from the nearly unanimous approach taken by other
jurisdictions interpreting analogous notice of claim statutes.
Under the Federal Tort Claims Act (FTCA), for example, a
claimant with a cause of action against the United States must
have first “presented” the claim to the appropriate federal
agency. 28 U.S.C. § 2675(a) (2006). Numerous courts have
concluded that the “present” requirement is inconsistent with
the mailbox rule. In Vacek v. United States Postal Service, the
Ninth Circuit rejected a claimant’s argument that the common law
mailbox rule creates a presumption that the government received
a claim under the FTCA. 447 F.3d 1248, 1251-52 (9th Cir. 2006).
Focusing on the requirement of governmental consent to be sued
and the “minimal effort” necessary to comply with the statute’s
requirement of receipt, the Ninth Circuit concluded that the
25
mailbox rule should not extend to claims brought under the FTCA.
Id. at 1252. The court reiterated that it would not “stretch
and distort the statute and the regulation to rescue counsel
from their own carelessness.” Id. at 1253 (quoting Bailey v.
United States, 642 F.2d 344, 347 (9th Cir. 1981)).
¶41 Other jurisdictions, including the Seventh and Eighth
Circuits, have also held that mailing alone does not satisfy the
FTCA’s requirement that the claim be “presented” to the
appropriate governmental agency. See Bellecourt v. United
States, 994 F.2d 427, 430 (8th Cir. 1993) (finding that the
claimant’s request was not received by the governmental agency,
despite the claimant’s argument that the mailbox rule should
apply); Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985)
(validating the district court’s conclusion that “mailing is not
presenting” and concluding that the claimant had not presented
her administrative claim because the claimant provided no
evidence to contradict the government’s affidavit alleging non-
receipt); see also Payne v. United States, 10 F. Supp. 2d 203,
205 (N.D.N.Y. 1998) (concluding that claimants did not satisfy
the filing requirement of the FTCA because the federal agency
denied receipt and the letter alleging that notice was mailed
was not evidence of actual receipt); Crack v. United States, 694
F. Supp. 1244, 1246-48 (E.D. Va. 1988) (explaining that mailing
does not satisfy the “presentment” requirement of the FTCA and
26
presentment is not satisfied if the claimant offers no evidence
to rebut an agency’s evidence of non-receipt).
¶42 The majority’s use of language from Barnett v.
Okeechobee Hospital provides little support for its conclusion.
See Op. ¶ 18. In addition to the fact that the Barnett decision
reflects a distinctly minority view, it is factually dissimilar
to the present case. See 283 F.3d 1232, 1234-35 (11th Cir.
2002). In that case, the federal government admittedly received
Barnett’s initial certified letter, but not a second letter
using a government-provided form. Id. In that context, the
court applied the mailbox rule. Here, the State asserts it
never received any notice of Lee’s claim. Moreover, Barnett
based its ruling on the notion that the government should be
treated exactly as a private defendant and applied the common
law mailbox rule rather than the plain language of the FTCA.
Id. at 1239-40. Arizona’s statute, however, requires that a
claimant against the government be treated in the same manner as
a litigant bringing an action against a private defendant: Both
must file their claims as set out in the Arizona Rules of Civil
Procedure. See A.R.S. § 12-821.01.A. That requirement, not the
status of the defendant, precludes application of the mailbox
rule. See Lombardo, 241 U.S. at 76-77 (refusing to apply the
mailbox rule to a statute that required filing with a
governmental agency).
27
¶43 The result in this case should be dictated by the
language of A.R.S. § 12-821.01.A, which requires that notice of
claims be “filed” with the appropriate state agency pursuant to
the rules of civil procedure. I would hold, in keeping with the
statutory language and in company with other jurisdictions, that
the filing requirement cannot be subject to the common law
mailbox rule.5
D.
¶44 Finally, the practical import of the majority’s
holding is unclear: Because the majority ventures into new
territory, its opinion leaves unanswered several critical
questions, including who determines whether a notice was “filed”
and how this determination is made.
¶45 Under the majority’s resolution, the trial judge will
face those questions on remand and must choose among several
approaches. On the one hand, the judge might treat the issue
whether Lee “filed” his claim as a preliminary fact question,
similar to a jurisdictional issue, or as a matter in abatement.
If either of those approaches is adopted, the question of
whether Lee filed the claim presumably is a question for the
5
Contrary to the majority’s suggestion, that conclusion does
not mean that a claim would be extinguished “based merely on a
defendant’s testimony that it has no record of receipt.” Op. ¶
19. It does mean that, faced with such testimony, a claimant
must present evidence of actual receipt, which this claimant
admittedly cannot do.
28
judge to resolve. See Ritza v. Int’l Longshoremen’s &
Warehousemen’s Union, 837 F.2d 365, 368-69 (9th Cir. 1988)
(recognizing that a “failure to exhaust nonjudicial remedies is
a matter in abatement, not going to the merits of the claim,”
and that the court has broad discretion to resolve “factual
issue[s] [that] arise[] in connection with a jurisdictional or
related type of motion” (citation omitted)); Bailey v. United
States, 642 F.2d at 347 (stating that “the district court
properly concluded” that the government had not received the
claim); Phillips v. Ariz. Bd. of Regents, 123 Ariz. 596, 599,
601 P.2d 596, 599 (1979) (“[T]here is a lack of jurisdiction
when there has been a failure to comply with a prerequisite to
the court’s considering the merits of a claim.”).
¶46 On the other hand, Lee may argue on remand that
Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990),
requires the issue of filing to be decided by a jury. In
Pritchard, this Court held that the factual issue of whether a
claimant’s failure to comply with the time limitation in
Arizona’s notice of claim statute was excusable must be
determined by a jury. Id. at 432-33, 788 P.2d at 1183-84. We
reasoned that under the then-applicable version of A.R.S. § 12-
821, which permitted untimely filing due to “excusable neglect,”
the time element was not jurisdictional, but procedural, in
nature. Id. at 432, 788 P.2d at 1183. Pritchard, however,
29
decided a statutory question no longer at issue because the
legislature amended the statute to remove the “excusable
neglect” exception in favor of language that requires strict
compliance with the statutory filing prerequisites. Compare
A.R.S. § 12-821.01.A with A.R.S. § 12-821.A (1992).
¶47 Even if Pritchard can be interpreted as requiring that
a jury decide whether a claim was “filed” under § 12-821.01.A,
the question remains as to how a jury makes this determination.
If a jury should decide that question in a separate proceeding
before a trial on the merits of the claim commences, we will
have encouraged satellite litigation to decide the issue. Or
the majority opinion may anticipate a bifurcated trial in which
the jury first decides receipt, and if receipt is found, then
decides recovery. That approach will, in those instances in
which the jury decides no claim was filed, subject the parties
to unnecessary expense and delay.
II.
¶48 The language of Arizona’s notice of claim statute is
clear: A claim must be “filed” as set forth in the Arizona
Rules of Civil Procedure. Arizona, in company with the
overwhelming majority of jurisdictions, has never applied the
mailbox rule to initial civil filing requirements. Particularly
in view of this Court’s insistence that a claimant strictly
30
comply with the requirements of § 12-821.01.A, we should reject
the invitation to expand the mailbox rule. The trial court
correctly dismissed this action for failure to comply with the
statute.
__________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
31