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raised by the facts, but not presented in the pleadings, should
not come at the expense of due process.” 273 Neb. at 1053,
736 N.W.2d at 373.
In the present case, the amended complaint filed by Matt
sought to modify custody and to award full custody to him.
Although Brittni and Cristian expressed a preference during
the custody hearing for a schedule in which they would stay
with their parents by alternating 1 week at a time, no com-
plaint to modify the parenting plan to this or other effect was
filed. See § 42-364(6). The district court correctly observed
that the issue of modifying the parenting plan was not properly
before it.
CONCLUSION
The district court did not err when it denied Matt’s amended
complaint to modify custody, in which he sought full custody
of the children. Furthermore, the district court did not err when
it observed that the issue of modifying the parenting plan was
not properly before it. Thus, we affirm.
Affirmed.
Miller-Lerman, J., participating on briefs.
Lozier Corporation, appellant, v. Douglas County
Board of Equalization, appellee.
___ N.W.2d ___
Filed April 19, 2013. Nos. S-12-322 through S-12-324.
1. Taxation: Judgments: Appeal and Error. An appellate court reviews decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is not arbitrary, capricious,
or unreasonable.
3. Taxation: Appeal and Error. An appellate court reviews questions of law aris-
ing during appellate review of decisions by the Tax Equalization and Review
Commission de novo on the record.
4. Taxation: Statutes. The plain language of Neb. Rev. Stat. § 77-5013(2) (Cum.
Supp. 2012) focuses on whether a mailing is properly placed in the mail, rather
than on whether the Tax Equalization and Review Commission receives it.
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5. Statutes: Legislature: Intent. The intent of the Legislature may be found
through its omission of words from a statute as well as its inclusion of words in
a statute.
6. Statutes: Notice: Intent: Words and Phrases. The intent of the “legible post-
mark” requirement in Neb. Rev. Stat. § 77-5013(2) (Cum. Supp. 2012) is to act as
evidence of the date an appeal is mailed. A postage meter stamp, when viewed in
the context of the pertinent U.S. Postal Service regulations, satisfies this purpose
and is a “postmark” within the meaning of § 77-5013(2).
7. Statutes: Jurisdiction. An appellate court strictly construes jurisdictional
statutes.
8. Statutes: Jurisdiction: Legislature: Intent: Appeal and Error. If the meaning
of an ambiguous jurisdictional statute is unclear, even after reviewing the legisla-
tive history, the statute’s purpose, and other resources, only then would an appel-
late court give it its most narrow interpretation.
Appeals from the Tax Equalization and Review Commission.
Reversed.
James F. Cann, of Koley Jessen, P.C., L.L.O., for appellant.
Theresia M. Urich and Malina Dobson, Deputy Douglas
County Attorneys, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Connolly, J.
NATURE OF THE CASE
Lozier Corporation (Lozier) mailed three appeals to the Tax
Equalization and Review Commission (TERC). Though Lozier
mailed the appeals before the filing deadline, TERC did not
receive the appeals until after the deadline had passed. A late-
arriving appeal may still be timely if the mailing meets certain
requirements under Neb. Rev. Stat. § 77-5013(2) (Cum. Supp.
2012). TERC determined that the mailing did not meet those
requirements and dismissed the appeals as untimely. The pri-
mary issue is whether a postage meter stamp is a “postmark”
under § 77-5013(2).
BACKGROUND
Lozier claimed that the Douglas County Board of
Equalization (the Board) had overvalued three parcels of land.
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Lozier hired an accounting firm—Marks Nelson Vohland
Campbell Radetic LLC (Marks Nelson)—to prepare and file
three property tax appeals. The deadline to file the appeals was
September 12, 2011.
The record shows that Marks Nelson prepared the appeals,
placed them in a single envelope, marked the envelope with
its postage meter, and then mailed the envelope by certified
mail to TERC on September 1, 2011. But the envelope did not
arrive at TERC. Instead, for unknown reasons, it arrived back
at Marks Nelson on September 15. At that point, Marks Nelson
marked its envelope with additional postage (using its post-
age meter) to send the envelope certified mail, return receipt
requested. Making no other changes to the envelope, Marks
Nelson again mailed it to TERC. TERC received the envelope
on September 20.
TERC entered an order to show cause as to why it should
not dismiss the appeals as untimely. A partner with Marks
Nelson testified for Lozier to the above facts. He, along with
a corporate officer at Lozier, argued that they had timely filed
the appeals under § 77-5013(2). That section provides, in
relevant part, that an appeal is timely filed “if placed in the
United States mail, postage prepaid, with a legible postmark
for delivery to [TERC] on or before the date specified by law
for filing the appeal.”
TERC first noted that the envelope did not have a U.S.
Post Office “cancel[l]ation mark” but that it did have “two
different Pitney Bowes postage labels” from Marks Nelson’s
postage meter. TERC noted that while there was “credible evi-
dence that the envelope was placed in the United States Mail
prior to September 15, 2011, . . . that envelope was delivered
to . . . Marks Nelson . . . rather than to [TERC].” So TERC
concluded that the envelope was in Marks Nelson’s posses-
sion on September 15, 2011, and “not appropriately placed
in the United States mail for delivery to [TERC] prior to that
date.” Finally, TERC concluded that the envelope arrived at
TERC “without a legible postmark.” TERC therefore deter-
mined that the appeals were untimely and dismissed them for
lack of jurisdiction.
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ASSIGNMENT OF ERROR
Lozier assigns, consolidated and restated, that TERC erred
in concluding that Lozier did not timely file its appeals under
§ 77-5013(2).
STANDARD OF REVIEW
[1-3] We review TERC decisions for errors appearing on the
record.1 When reviewing a judgment for errors appearing on
the record, our inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is not arbitrary,
capricious, or unreasonable.2 We review questions of law aris-
ing during appellate review of TERC decisions de novo on
the record.3
ANALYSIS
The issue is whether Lozier complied with the statutory
requirements for a timely appeal under § 77-5013(2). Section
77-5013(2) states, in relevant part, that an appeal “is timely
filed . . . if placed in the United States mail, postage pre-
paid, with a legible postmark for delivery to [TERC] on or
before the date specified by law for filing the appeal.” We
previously addressed a version of this “mailbox rule” in
Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm.,4 where
we concluded that TERC lacked the authority to adopt the
rule because it improperly expanded its jurisdiction. But the
Legislature obviously has the authority to adopt such a rule,
which it did in § 77-5013(2) after our decision in Creighton
St. Joseph Hosp.5
At the outset, the Board argues that the September 1,
2011, mailing was irrelevant and that TERC properly focused
1
See, e.g., Republic Bank v. Lincoln Cty. Bd. of Equal., 283 Neb. 721, 811
N.W.2d 682 (2012).
2
See id.
3
See id.
4
Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905, 620
N.W.2d 90 (2000).
5
See, § 77-5013(2); 2001 Neb. Laws, L.B. 170, and 2004 Neb. Laws,
L.B. 973.
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on the September 15 mailing. The Board argues that this is
so “because it is from this re-deposit into the U.S. mail on
September 15 . . . that the envelope was eventually delivered
to [TERC].”6 In other words, because the September 15 mail-
ing arrived at TERC and the September 1 mailing did not, the
Board claims that the September 15 mailing must be the focus
of our analysis.
We give statutory language its plain and ordinary meaning,7
and we will not read into a statute a meaning that is not there.8
Section 77-5013(2) does not provide that the mailing which
arrived controls over a prior mailing which did not. Instead,
§ 77-5013(2) focuses only on whether the appeal was prop-
erly placed in the mail with sufficient postage and a legible
postmark for delivery to TERC before the filing deadline. So
whether the mailing actually arrived the first time has no bear-
ing on whether TERC acquired jurisdiction. And this makes
sense. If the Board’s position was correct, then any time a
person’s appeal was returned after the last filing date, even
if the person had done everything correctly and according to
§ 77-5013(2), the appeal would be untimely. This would be an
absurd result because it would penalize taxpayers for events
not under their control.
The U.S. Tax Court rejected an argument similar to the
Board’s in Estate of Marguerite M. Cranor.9 In that case,
the petitioner mailed his petition on September 3, 1999, well
before the September 7 deadline. The September 3 mailing
was correct in all respects, but it was returned to the peti-
tioner on September 16. The petitioner removed the petition
from the returned envelope and remailed it in a new envelope
that same day. The Commissioner of Internal Revenue con-
tended that the second mailing was the only one that mat-
tered, that it occurred after the September 7 deadline, and that
6
Brief for appellee at 10.
7
See, e.g., Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
8
See, e.g., Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149
(2012).
9
Estate of Marguerite M. Cranor, 81 T.C.M. (CCH) 1111 (2001).
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therefore, the court lacked jurisdiction to reach the merits of
the petition.10
The court rejected the Commissioner of Internal Revenue’s
argument:
[S]ection 7502(a) does not require that the qualifying
envelope (i.e., the envelope which was timely mailed,
properly addressed, and bore the proper postage) be the
envelope in which the petition is received; nor does section
7502(a) bar application of the “timely mailing is timely
filing” rule if a petition contained in a properly addressed
envelope (that otherwise meets the above requirements) is
returned to, and remailed by, the taxpayer.11
[4] The same reasoning applies here. We reject the Board’s
argument that the September 1, 2011, mailing is irrelevant to
our inquiry. The plain language of § 77-5013(2) focuses on
whether the mailing was properly placed in the mail, rather
than on whether TERC received it. And because the September
15 mailing obviously occurred after the filing deadline, only
the September 1 mailing could have conferred jurisdiction on
TERC. It must be the focus of our analysis.
There is no dispute that Lozier placed the envelope “in
the United States mail” on September 1, 2011, or that the
September 1 mailing was before the September 12 filing
deadline. Nor is there any dispute that the envelope had the
proper postage. The only issues are whether Lozier placed the
envelope in the mail “for delivery to [TERC]” and whether
the mailing had “a legible postmark.”
TERC seemingly concluded, and the Board now argues, that
Lozier had not placed the envelope in the mail “for delivery to
[TERC]” because it arrived at Marks Nelson’s offices rather
than at TERC. But errors are known to occur in the postal sys-
tem, and the fact that Lozier’s September 1, 2011, mailing did
not arrive at TERC is not dispositive. And when viewed with
the rest of the evidence, we conclude that both TERC’s conclu-
sion and the Board’s argument are unreasonable.
10
See id.
11
Id. at 1113.
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There is no dispute that Lozier intended to appeal several
tax valuations and that it could only do so by sending the
appropriate documents to TERC. It stands to reason, then, that
Lozier intended to mail the documents to TERC so its appeals
could be heard. Testimony supports this conclusion. A corpo-
rate officer at Lozier testified that Marks Nelson, on behalf
of Lozier, mailed the appeals to TERC for review. A partner
with Marks Nelson also testified that Marks Nelson mailed
Lozier’s appeals to TERC for review. Additionally, the parties
do not dispute that the envelope contained an accurate address
for TERC. And when Marks Nelson remailed the envelope on
September 15, 2011, with no changes from the September 1
mailing other than adding postage for a return receipt, it did
in fact arrive at TERC. We conclude that Lozier placed the
envelope in the mail “for delivery to [TERC]” on September
1 and that both TERC’s conclusion and the Board’s argument
otherwise are unreasonable.
Still, the Board also argues that the mailing did not com-
ply with U.S. Postal Service (USPS) regulations and so for
that reason, Lozier did not place the envelope in the mail
“for delivery to [TERC].” Specifically, the Board argues that
the return address was not located in the top left corner of
the envelope and that the Marks Nelson logo was below the
delivery line of the delivery address. We find these argu-
ments unpersuasive.
We may take judicial notice of federal agencies’ regula-
tions.12 The USPS’ Domestic Mail Manual (DMM)13 has been
incorporated by reference into the Code of Federal Regulations
and has the force of law.14 It lists the types of mail which
require a return address.15 The record shows that Marks Nelson
mailed Lozier’s appeals on September 1, 2011, by certified
mail, without a return receipt requested. The USPS apparently
12
See Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003).
13
Mailing Standards of the United States Postal Service, Domestic Mail
Manual, http://about.usps.com/manuals/welcome.htm (last visited Apr. 11,
2013).
14
See 39 C.F.R. §§ 111.1 through 111.4 (2012).
15
See DMM, supra note 13, § 602.1.5.3.
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does not require a return address for such a mailing.16 And
although the USPS apparently recommends not placing a logo
or label below the delivery line of the delivery address,17 we
see no requirement to that effect in the DMM. So to the extent
that the USPS’ regulations are relevant to whether Lozier
placed its appeals in the mail “for delivery to [TERC],” in this
case, they do not change our conclusion.
For an appeal to be timely filed, it must contain a legible
“postmark” dated before the filing deadline. The record shows
that the September 1, 2011, mailing had a Pitney Bowes post-
age meter stamp in the top right-hand corner of the envelope
for $4.13. TERC impliedly determined, and the Board argues,
that such a marking does not qualify as a “postmark.” Lozier,
on the other hand, argues that such a marking does qualify as
a “postmark.” This is an issue of first impression in Nebraska.
The meaning of a statute is a question of law,18 which we
review de novo on the record.19 The Tax Equalization and
Review Commission Act20 does not define “postmark”; in fact,
it is not defined anywhere in the Nebraska statutes. Nor is it
defined in our case law. TERC has, however, defined “post-
mark” in the Nebraska Administrative Code. There, TERC has
defined “Postmark” as “[t]he cancellation mark of the [USPS].
The mark of any private delivery or courier service (such as
FedEx, Airborne, UPS, etc.) is not a postmark.”21 The Board
invites us to apply that definition here.
But that definition explicitly applies only when “used in
the Rules and Regulations of [TERC],” and even then it does
not apply if “the context of a term’s use requires a differ-
ent definition.”22 Nor does it purport to define the statutory
16
See id.
17
See United States Postal Service, Business Mail 101, http://pe.usps.com/
businessmail101/addressing/returnAddress.htm (last visited Apr. 11, 2013).
18
See, e.g., In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
19
See, e.g., Republic Bank, supra note 1.
20
See Neb. Rev. Stat. § 77-5001 et seq. (Reissue 2009 & Cum. Supp. 2012).
21
442 Neb. Admin. Code, ch. 2, § 001.41 (2011).
22
Id., § 001.
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term “postmark” as used in § 77-5013(2), but only the term
“postmark” as used in TERC’s rules and regulations. And
although specifically defined, TERC’s rules and regulations
never actually use the term “postmark.” We reject the Board’s
invitation.
Again, we give statutory language its plain and ordinary
meaning.23 “The plain meaning of the term connotes a mark
placed on a mailed item.”24 Definitions for the term abound.
For example, the USPS defines a “postmark” as follows:
A postal imprint made on letters, flats, and parcels that
shows the name of the Post Office that accepts custody of
the mail, along with the two-letter state abbreviation and
ZIP Code of the Post Office, and for some types of mail
the date of mailing, and the time abbreviation a.m. or p.m.
The postmark is generally applied, either by machine or
hand, with cancellation or killer bars to indicate that the
postage cannot be reused.25
Black’s Law Dictionary defines a “postmark” as “[a]n offi-
cial mark put by the post office on an item of mail to cancel
the stamp and to indicate the place and date of sending or
receipt.”26 And Webster’s defines a “postmark” as “an offi-
cial postal marking on a piece of mail; specif: a mark show-
ing the name of the post office and the date and sometimes
the hour of mailing and often serving as the actual and only
cancellation.”27 The first two definitions indicate that only
the USPS may make a “postmark,” while the last defini-
tion could arguably include a postage meter stamp because
the USPS authorizes and regulates postage meters’ use28;
23
See, e.g., Spady, supra note 7.
24
See Chevron U.S.A. v. Department of Revenue, 154 P.3d 331, 334 (Wyo.
2007).
25
United States Postal Service, Glossary of Postal Terms, http://about.usps.
com/publications/pub32 (last visited Apr. 11, 2013).
26
Black’s Law Dictionary 1286 (9th ed. 2009).
27
Webster’s Third New International Dictionary of the English Language,
Unabridged 1772-73 (1993).
28
See DMM, supra note 13, § 604.
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so a postage meter stamp could be considered an “official
postal marking.”29
A statute is ambiguous if it is susceptible of more than
one reasonable interpretation.30 Based on the foregoing, we
conclude that the meaning of the term “postmark” is ambigu-
ous. It could mean only a mark made by the USPS or it could
also mean marks made by postage meters, which the USPS
licenses and regulates. We construe an ambiguous statute
to give effect to its legislative purpose.31 Our review of the
legislative history of § 77-5013 provided no guidance as to
whether the term “postmark” was intended to include postage
meter stamps.
There are apparently various kinds of postmarks. For exam-
ple, the USPS recognizes and defines “[e]lectronic,” “local,”
and “philatelic” postmarks.32 The Internal Revenue Service,
in interpreting its own “‘timely mailing is timely filing’”
rule, recognizes both USPS postmarks and non-USPS post-
marks.33 Here, the Nebraska Legislature used only the unquali-
fied, general term “postmark.” This is noteworthy because the
Legislature has in other sections qualified the term “postmark.”
For example, in Neb. Rev. Stat. § 77-27,125 (Reissue 2009),
the Legislature used the term “United States postmark.” In
Neb. Rev. Stat. § 86-644 (Reissue 2008), the Legislature used
the term “electronic postmark.”
[5] Lozier accurately notes that the intent of the Legislature
may be found through its omission of words from a stat-
ute as well as its inclusion of words in a statute.34 The
Legislature knew and understood that there were various types
29
See Severs v. Abrahamson, 255 Iowa 979, 124 N.W.2d 150 (1963).
30
See, e.g., In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012).
31
See, e.g., Blakely, supra note 8.
32
See Glossary of Postal Terms, supra note 25.
33
Estate of Marguerite M. Cranor, supra note 9, 81 T.C.M. at 1113. See 26
C.F.R. § 301.7502-1 (2012). See, also, e.g., Kahle v. Commissioner, 88
T.C. 1063 (1987).
34
See, e.g., In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557
(1999).
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of postmarks, but it chose to use the general, unqualified term
“postmark.” Moreover, the Legislature was also presumably
aware of the prevalence of postage meter use. “Federal legisla-
tion authorizing private postage meters has been in effect since
1920 and, as long ago as 1961, forty-five percent of all mail
in this country and half of the business mail was processed by
private meters.”35 If the Legislature meant the term “postmark”
to mean only a USPS postmark, it could have said so explicitly,
as it has elsewhere. It did not.
[6] We construe statutes to give effect to the underlying
purpose of the statute.36 Looking at the statute’s language,
the intent of the “legible postmark” requirement was to act
as evidence of the date the appeal was mailed.37 We conclude
that a postage meter stamp, when viewed in the context of
the pertinent USPS regulations, satisfies this purpose and is a
“postmark” within the meaning of § 77-5013(2).
The USPS licenses and regulates the use of postage meters,
as outlined in the DMM. Only authorized entities, such as
Pitney Bowes, are able to provide postage meters, and no one
but the USPS may actually own a postage meter.38 The use of
postage meters is heavily regulated. Mailers are required to
place metered mail in the mail by the labeled date or correct
the date using a date correction indicium.39 Failure to do so
will subject the mailer to penalties, such as loss of the postage
meter.40 Additionally, a person who misuses a postage meter
runs the risk of being criminally prosecuted.41 We believe these
regulations are sufficient to qualify a postage meter stamp as
satisfactory evidence of the date of mailing.
35
Chevron U.S.A., supra note 24, 154 P.3d at 338. See, also, Severs, supra
note 29; Charles Pomeroy Collins, The Validity of Postmarks, 47 A.B.A. J.
371 (1961).
36
See, e.g., Blakely, supra note 8.
37
See § 77-5013(2).
38
DMM, supra note 13, §§ 604.4.1.3 and 604.4.2.
39
Id., §§ 604.4.5.1 and 604.4.6.2.
40
Id., § 604.4.2.4.
41
See, Severs, supra note 29; 18 U.S.C. § 1001 (2006).
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Other courts have reached similar results, reasoning that
a postage meter stamp is a “postmark” because heavy USPS
regulation of postage meters safeguards its evidentiary value
as to the date of mailing.42 We recognize that many of those
courts operated under an older version of the DMM with dif-
ferent regulations. Most notably, the older versions of the
DMM apparently included regulations indicating that the post
office would inspect metered mail to ensure the postage meter
stamp’s date accuracy.43 We have not found an equivalent regu-
lation in the current DMM; rather, the onus appears to be on
the mailer to correct any mistakes in the date of the postage
meter stamp.44
But the absence of regulations explicitly saying that the
USPS performs random checks of metered mail does not
mean that a postal service worker would not correct, or
bring to the mailer’s attention, an incorrect date. The cur-
rent regulations clearly require mail to be dated accurately.45
Furthermore, in the absence of a contrary indication, lawful
conduct—that mailers comply with the regulations—is pre-
sumed.46 Moreover, though those regulations are missing, it
remains true that the USPS authorizes and heavily regulates
postage meter use and that misuse of a postage meter can
result in significant penalties. Under such circumstances, and
in the absence of evidence showing that the mailer misused
the meter, we conclude that a postage meter stamp satisfies
the statute’s purpose of being evidence of the mailing date and
that it is a “postmark.”
42
See, Chevron U.S.A., supra note 24; Abrams v. Ohio Pacific Exp., 819
S.W.2d 338 (Mo. 1991); Haynes v. Hechler, 182 W. Va. 806, 392 S.E.2d
697 (1990); Bowman v. Ohio Bur. of Emp. Serv., 30 Ohio St. 3d 87,
507 N.E.2d 342 (1987); Severs, supra note 29; Frandrup v. Pine Bend
Warehouse, 531 N.W.2d 886 (Minn. App. 1995); Gutierrez v. Industrial
Claim App. Off., 841 P.2d 407 (Colo. App. 1992).
43
See, e.g., Bowman, supra note 42.
44
See DMM, supra note 13, § 604.4.6.2.
45
See id., §§ 604.4.5.1 and 604.4.6.1.
46
See, Coad v. Coad, 87 Neb. 290, 127 N.W. 455 (1910); Severs, supra
note 29.
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We recognize, too, that other courts have held differently.47
And although we agree that it is impossible for the USPS to
“closely scrutinize all of the millions of meter-marked dates on
the mail it processes,”48 we believe the risk of an inspection to
the mailer (and its attendant penalties) sufficiently discourages
any mismarking.
[7,8] Finally, it is true, as the Board notes, that we strictly
construe jurisdictional statutes.49 But that does not mean that
whenever there is a question about the meaning of a term, we
automatically interpret it so as to foreclose jurisdiction. If that
were the case, then there would be no “construction” at all.
Instead, that principle serves to decide cases where, after fur-
ther investigation, there is no ready answer. In other words, if
the meaning of an ambiguous jurisdictional statute is unclear,
even after reviewing the legislative history, the statute’s under-
lying purpose, and other resources, only then would we give
it its most narrow interpretation. That is not the case here. We
conclude that a postage meter stamp is a “postmark” within the
meaning of § 77-5013(2).
CONCLUSION
Lozier’s mailing met the jurisdictional requirements under
§ 77-5013(2). We reverse TERC’s dismissal of Lozier’s appeals
as untimely.
R eversed.
Miller-Lerman, J., not participating.
47
See, Smith v. Idaho Dept. of Labor, 148 Idaho 72, 218 P.3d 1133 (2009);
Lin v. Unemployment Comp. Bd. of Review, 558 Pa. 94, 735 A.2d 697
(1999); Machado v. Florida Unemployment Appeals, 48 So. 3d 1004 (Fla.
App. 2010); Corona v. Boeing Co., 111 Wash. App. 1, 46 P.3d 253 (2002).
48
See Smith, supra note 47, 148 Idaho at 75, 218 P.3d at 1136.
49
See, e.g., Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb.
435, 623 N.W.2d 308 (2001).