Groseclose v. City of Tulsa

¶ 1 KAUGER, C.J.,

dissenting with whom LAVENDER, OPALA, WATT, JJ/, join:

¶2 Pursuant to Rule 1.179, Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. I,1 a petition for certiorari must be filed within twenty days of the date of a Court of Civil Appeals order denying rehearing. A certiorari petition is timely only when it has met the time requirements imposed and when the party filing the petition has remitted costs.2 Rule 1.179 provides that the time to file a petition for certiorari “shall not be extended.”3

¶3 The Court of Civil Appeals issued an order denying rehearing on March 11, 1998. Under Rule 1.179, the defendant/appellant, City of Tulsa [City], had twenty days — or until March 31, 1998 to file a petition for certiorari along with the required costs.4 The City met the physical requirements for mailing imposed by Rule 1.4(c), Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App. I.5 On March 31, 1998, the petition was sent certified mail, return receipt requested to the Clerk of the Supreme Court. However, Rule 1.4(c),6 like its counterpart, Rule 1.179,7 requires that costs be included with the petition before the it may be filed. Costs were not paid until April 2, 1998 — two days out of time.8 Therefore, because the petition for certiorari was not timely filed, the Court was without jurisdiction to reach the merits of the cause.

. Rule 1.179, Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. 1, provides in pertinent part:

"... (e) Time to File Petition. When no party seeks rehearing in the Court of Civil Appeals a petition will be deemed timely if filed with the clerk of the Supreme Court within twenty (20) days of the date the opinion was filed by the Court of Civil Appeals. When a party sought rehearing a petition for certiorari will be deemed timely if filed with the clerk of the Supreme Court within twenty (20) days of the date the order of the Court of Civil Appeals is filed that has denied all timely filed rehearing petitions. The time to file petition for certiora-ri shall not be extended. A petition for certio-rari will be deemed filed when mailed if it complies with Rule 1.4(c) and (e)....
(H) Costs. An application for certiorari shall be timely filed when the requirements of Rule 1.179 are met and when a party filing a petition for certiorari remits to the Clerk of the Supreme Court the cost of deposit provided by statute....”

. Id.; Rule 1.14(c), Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. 1, see note 5, infra.

. Id. Use of "shall” is normally considered a mandate equivalent to the term "must,” requiring interpretation as a command. United States of America acting through the Farmers Home Admin, v. Hobbs, 1996 OK 77, 921 P.2d 338, 342; Heirshberg v. Slater, 1992 OK 84, 833 P.2d 269, 275; Fuller v. Odom, 1987 OK 64, 741 P.2d 449, 452.

. Rule 1.179, Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. 1, see note 1, supra.

. Rule 1.14(c), Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. 1, provides in pertinent part:

"(c) Petition in error, Petition for Review an Order of the Workers Compensation Court, Petition for Certiorari to the Court of Civil Appeals, and Mailing. A petition in error in an appeal brought pursuant to 12 O.S. Supp. 1995 § 990A may be filed either by delivery to the Clerk of the Supreme Court or by sending it by U.S. certified mail with return receipt requested to the Clerk of the Supreme Court, Room B-2, State Capitol Bldg., 2300 N. Lincoln, Oklahoma City, OK, 73105, or Clerk of the Supreme Court, P.O. Box 53126, Oklahoma City, OK 73152.... Where a petition in error is mailed following the requirements of this rule, the petition in error shall not be filed unless the full amount of the required cost deposit for filing of tire petition in error has also been mailed, conforming to the same mailing requirements, or such cost deposit is actually received by the Court Clerk.”

. Id.

. Rule 1.179, Rules of the Supreme Court, 12 O.S. Supp.1997, Ch. 15, App. 1, see note 1, supra.

. The date stamped on the Petition for Writ of Certiorari is "April 2, 1998” the date costs were received from the City.