dissenting:
I respectfully dissent.
I believe that the majority reads Rule 12(b)(3) too literally and narrowly. The paramount rule of our interpretation is to glean the intent of Rule 12(b)(3) and then follow it. I do not believe that the majority would deny that one of the intended consequences of the rule is to provide easy access to appellate review. The supreme court has adopted the present and more liberal mailbox rule that did not compromise the integrity of the original rule and made the date of mailing provable through proof other than a postmark. The original rule made the United States Postal Service (USPS) the agent of the recipient and determined that placement in the hands of the USPS was placement in the hands of the recipient. Previously, the date of placement in the hands of the recipient was determined by the postmark affixed by the USPS.2 The USPS is normally a third party, a messenger so to speak, between a party and the courthouse and the opposing party/parties, and it is deemed an agent of the recipient. However, the prior rule was deficient if the postmark was missing or illegible. Thus, the mailbox rule was made more liberal to allow proof of mailing by an attorney’s certificate of mailing or by the affidavit of the person placing the paper in the mail. The amendment served two purposes. First, it made mailing easier to prove. Second, it often resulted in a mailing date earlier than that on the postmark stamped on the envelope by the USPS. The comments to the rules mention the problem of an illegible postmark as the reason for the amendment.
The comments are silent as to why a legible postmark is no longer competent proof of mailing. The comments are also silent as to whether it was the drafters’ intent to abandon the postmark as competent proof of mailing. There is nothing in any case or comment to the rules that supports the proposition that a legible postmark is incompetent evidence of when the USPS acknowledged receipt of the paper being placed in the mail. Furthermore, the comments do not relate that a legible postmark is inherently unreliable or subject to fraudulent misrepresentation. There is nothing in the comments that affirmatively disavows, proscribes, or contradicts the use of a postmark as proof of mailing if the postmark is timely.
The majority claims that a postmark as proof of mailing “has been specifically rejected by the drafters of Rule 373 as an acceptable form of proof of mailing.” 391 Ill. App. 3d at 1002. The definition of “specify” is to name or state explicitly or in detail. Merriam-Webster’s Collegiate Dictionary 1125 (2000). I submit that there is no specific or explicit exclusion. If it is done, it is done sub silencio. Like Marcel Marceau, the majority has brought poetry to silence.
The majority cites to Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209 (2009), as authority that postmarks are incompetent evidence of mailing. In Secura, there was not one word concerning whether a postmark did or did not exist, whether it was legible or illegible, whether it was timely or untimely. There is little in Secura that supports the majority position, other than to say that a cover letter inside an envelope does not establish the date of mailing and that Rule 12(b)(3) should be followed. To say that Secura is supportive of the majority’s analysis is to equate silence to the blare of shofars surrounding Jericho.
Furthermore, Secura is not a case that involved a liberty interest as is involved in this case. The majority has interpreted the rule in such a way as to make it impossible for this class of appellants to effectively utilize the mailbox rule without the assistance of prison staff to execute an affidavit pursuant to Rule 12(b)(3). Rule 12(b)(3) requires the person placing the paper in the mail to execute the affidavit. Contrary to cases that would hold that placement in the hands of prison staff is the same as placing the paper in the mail, Rule 12(b)(3) is silent on that point. Unless there are different levels of silence, the defendant cannot execute a valid affidavit because he has not placed the paper in the United States mail. See People v. Saunders, 261 Ill. App. 3d 700 (1994); People v. Johnson, 232 Ill. App. 3d 882 (1992); People v. Aldridge, 219 Ill. App. 3d 520 (1991). 3 These cases interpreted Rule 12(b)(3) liberally to conclude that the defendant’s affidavit would suffice even though he did not actually place the paper in the mail. If the rule can be interpreted in such a way when it is silent as to allowing an affidavit from a person who did not actually place the paper in the mail, then it would seem that my interpretation concerning the inclusion of a timely legible postmark as proof of mailing is reasonable as well. As the Aldridge court said, “In our judgment this construction avoids an unduly harsh and unjust result. Any other result would allow defendants in certain parts of the State to vacate their guilty pleas under certain circumstances while those in others parts could not.” Aldridge, 219 Ill. App. 3d at 523.
Incarcerated criminal defendants are in an unusual situation where the ability to pro se mail a paper is impossible. An inmate is required to place outgoing mail in the hands of the staff of the institution having custody of the inmate.4 The majority has not explained or examined the implications of treating this class of appellants in such a harsh manner and diluting the policy of easy access per the mailbox rule. The majority has refused to accept a timely postmark as proof of mailing by requiring a literal application based upon silent “specification.” Unlike the courts’ rationales in Aldridge, Johnson, and Saunders, there is a basis in the rule for my interpretation. A basis that does not inhibit but fosters easy access to this court is readily apparent in the adoption of the original mailbox rule and its evolution to the present day.
Unfortunately, despite the liberty interest involved, the majority has determined, sua sponte, without an evidentiary hearing, that the notice was not timely filed. I do not question our independent duty to inquire whether we have jurisdiction. I question why we do not give defendant an opportunity to submit a late filing of “proper” proof of mailing by way of an evidentiary hearing or the filing of exhibits, pleadings, or affidavits. I submit that this would be timely because jurisdiction was neither contested nor questioned until this court raised the issue, sua sponte. Having cited to Secura, the majority should consider our supreme court’s suggestion that a proper proof of mailing could be filed subsequently in a reasonably timely manner. 0Secura Insurance Co., 232 Ill. 2d at 218) (“Moreover, we note that the record is devoid of any attempt by Secura to supply a proof of service or affidavit”). Since we raised the issue sua sponte, we should allow defendant an opportunity to present whatever proofs he deems appropriate. According to the majority he would have to obtain an affidavit from the staff member who actually placed his paper in the United States mail. (Since I am the minority this would be the wisest choice.) According to my interpretation, he could file a pro se affidavit as to when he placed the paper in the hands of the Department of Corrections staff, based upon prior precedent; or he could obtain an affidavit from the circuit court clerk affirming that the clerk’s standard business practice is to attach the envelope to the document that was contained inside it. This latter choice is similar to what appears to have occurred in Standard Mutual Insurance Co. v. Rogers, 381 Ill. App. 3d 196, 198 (2008) (when the certificate of mailing was contested, the circuit court clerk was contacted to confirm the postmark). To refuse defendant this opportunity disregards the supreme court’s suggestion that a subsequent filing of a proof of mailing is competent evidence.
Time may be defined as “a nonspatial continuum that is measured in terms of events which succeed one another from past through present to future.” Merriam-Webster’s Collegiate Dictionary 1231 (2000). Thus, before a postmark can be stamped on an envelope, the envelope must be placed in the mail. If the postmark is timely, then it is immaterial when the envelope was actually placed in the mail. It defies the purpose of the mailbox rule to conclude that a certificate or affidavit must be the only means to establish a timely mailing. For the majority to conclude that the rule will not entertain such a syllogistic proof is to determine that equivocal silence is an explicit negation of the pro-mailing policy of Rule 12(b)(3) and the mailbox rule. If, as determined by the majority, everything that is not specifically allowed is proscribed because it is “specifically rejected,” then several prior cases interpreting Rule 12(b)(3) are incorrect and the affidavit must be executed by staff, and an attempted subsequent filing of the proof of mailing is incompetent despite what Secura states.
I submit that the majority’s interpretation subverts the mailbox rule and will place an undue burden upon staff of the Department of Corrections and any other institution that does not allow pro se access to the USPS. It may come to pass that with this additional burden the statement contained in Aldridge may have even greater impact, and some defendants’ appeals will be perfected because the affiants placed the papers in the mail in a timely fashion and other defendants’ appeals will fail because the affiants did not place the papers in the mail in a timely fashion. Further litigation may ensue by defendants seeking mandamus to require the execution of affidavits and to require timely placement in the mail. It may come to pass that suits will arise seeking damages for failure to act reasonably in fulfilling the duties created by a literal interpretation of Rule 12(b)(3).
I do not believe that the supreme court or the committee that formulated the present version of the rule intended to abrogate the ability to prove mailing by other forms of competent evidence. The fact that the rule has eased the procedure for establishing compliance with the mailbox rule does not constitute an affirmative statement that otherwise competent evidence of mailing is no longer competent. Secura does not make the attachment of a certificate or affidavit of mailing a sine qua non. If it did, then a suggested subsequent attempt to comply with the rule would be unavailing. The rule has never specifically said that a postmark is incompetent evidence to prove the date of mailing under any circumstance. The comments never state that a timely postmark is less reliable than a properly executed and attached certificate or affidavit. It is unreasonable to conclude that the supreme court intended the pro-mailing policy to be narrowed and thwarted via silence to preclude proof of mailing by a timely postmark, especially in an instance where the mailer is given limited access to the mail. In People v. Barcik, 357 Ill. App. 3d 1043 (2005), this court determined that it had no jurisdiction over the appeal because no proof of mailing was filed with the defendant’s notice of appeal. There was no mention of a timely postmark of record to establish the date of mailing, only a dated letter that was attached to the notice of appeal. Our supreme court entered a supervisory order, vacated the dismissal, and remanded for disposition on the merits. People v. Barcik, 217 Ill. 2d 569 (2005). Although not precedential, the supervisory order comports with the policy of ease of access to the appellate court and the pro-mailing policy of the rule. I submit that, in this case, a timely postmark should satisfy a reasonable skeptic that timely mailing was established.5
The purpose of the amended rule was to actually expand the pro-mailing policy that existed when the postmark was the most liberal proof of mailing. Frequently, the postmark was legible but established that the mailing was not timely. The committee and the supreme court were aware that often a postmark would not be stamped on the same day the document was placed in a mailbox, sent in a bag with other mail to the post office, or even handed to a postal clerk. Thus, the postmark did not always establish the earliest date that the USPS received the document. Thus, a certificate or an affidavit could supplant the postmark and establish that despite the postmark the document was mailed on an earlier date and in a timely fashion. A fair reading of the history of the rules and their amendments indicates a consistent broadening of the application of the mailbox rule in order to give the mailer the greatest benefit. The fact that the rule has eased the procedure for establishing compliance with the mailbox rule does not mean that there has been an affirmative statement that otherwise competent proof of mailing is no longer competent.
For the above reasons I believe that, at best, we have jurisdiction. At worst, I believe that we should do as the Third District Appellate Court did in Standard Mutual and obtain a statement from the circuit court clerk as to whether or not the notice of appeal was contained in the envelope that was attached to it, or we should allow defendant the opportunity to obtain an affidavit from the Department of Corrections staff member who placed the paper in the mail.
“A postmark is ‘an official postal marking on a piece of mail; specif-, a mark showing the name of the post office and the date and sometimes the hour of mailing and often serving as the actual and only cancellation.’ ” Wickman v. Illinois Property Tax Appeal Board, 387 Ill. App. 3d 414, 417 (2008). In Guillen ex rel. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 154 (2003), our supreme court found that an affidavit of mailing of a notice did not suffice and that proof of mailing as required by statute (215 ILCS 5/143.17a(b) (West 1992)), was to be based upon documentation from the USPS. At least the legislature considers the USPS more reliable than an affidavit of mailing from an insurance company. At minimum, a postmark is competent evidence of mailing, regardless of the criteria set forth in the rule. Rule 12(b)(3) is silent as to preclusion of admissible evidence on the point of mailing.
The fact that a party claims to have placed the paper in the mail does not make it so. In Baca v. Trejo, 388 Ill. App. 3d 193 (2009), although the certificate of service stated placement in the mail, the paper was actually placed with the United Parcel Service. This court determined that the UPS is not the USPS and found the filing untimely, despite the certificate’s claim that it was timely placed in the mail by the attorney.
For a discussion of how outgoing mail is handled by the Department of Corrections, see Beahringer v. Roberts, 334 Ill. App. 3d 622 (2002), and People v. Saunders, 261 Ill. App. 3d 700 (1994).
In Barcik it was a letter that provided the only evidence of a date. Barcik, 357 Ill. App. 3d at 1048. A letter was deemed insufficient in Secura.