Perez v. South Jordan City

ORME, Judge

(dissenting):

{10 I dissent. Unlike the majority, I do see a reason to interpret the Utah Municipal Code (the UMC) differently from the Utah Administrative Procedures Act (UAPA). UAPA does not include a provision like the UMC provision that imposes a certification step. I think the UMC's requirement that the decision be certified to the City Recorder is analogous to the requirement that judgments be filed with the court clerk before they become final and appealable. See Utah R. Civ. P. 58A(b)-(c) (explaining that a "judgment is complete and shall be deemed entered for all purposes ... when it is signed [by the judge] and filed [with the clerk]") (emphasis added); Willden Family Dental, Inc. v. Cammon, 2007 UT App 404U, para. 3, 2007 WL 4443005 (mem.) (per curiam) (holding that "[elutry of a final, appealable judgment ... occurred when the order granting summary judgment was both signed by the district court judge and filed with the clerk").

{ 11 If a judge signs a judgment on June 7, but it is not filed by the court clerk until June 10, the judgment is effective on June 10. See Willden Family Dental, Inc., 2007 UT App 404U, para. 4, 2007 WL 4443005. The Board in this case may have signed its decision on June 7, but the statutorily required certification to the city recorder could not have happened until June 10, the day the City Recorder indicated in her transmittal letter to Perez that the decision was delivered to her and the day on which she mailed what she characterized as "a copy of the official Certified Decision & Order" to Perez.¹

112 Decision "issuance" under the UMC did not ripen until the decision was certified to the City Recorder, as required by the mandatory language of the statute. See Utah Code Ann. § 10-3-1106(5)(a)@i) (Supp. 2011). The uncertainty my colleagues worry about is simply not presented by this case. Holding to my view-that issuance equates to the date a signed order is certified-promotes just as much certainty as the majority's view that issuance equates to the date of signing by the Board.² And my view recognizes, as did the Board, the importance of statutorily mandated certification.³

1 . The majority takes comfort in a per curiam memorandum decision, Silva v. Department of Employment Security, 786 P.2d 246 (Utah Ct.App.1990). Unlike the petitioner in Sifva, however, Perez is not claiming that the fact his copy was mailed on June 10, but did not reach him until later, means his appeal time was extended. See id. at 247. Instead, Perez focuses his attention on certification, which is much more analogous to a clerk filing a court's final order than it is to mailing notice of an immediately effective decision. In Silva, we were apparently concerned about the uncertainty that would ensue if petitioners used the date on which a decision was mailed or on which they received a decision in the mail as the starting date for appeal and judicial review deadlines, and we held that the starting date has to be "when the final agency order issues and not when [it is] allegedly received by a party." Id. In line with Silva, Perez acknowledges his appeal time started to run on June 10, with certification to the city recorder, not at some later date when he received the decision.

2 . It may actually be that my view promotes greater certainty. In this case, there was a blank for the day in June when the order was signed. Someone-one of the three signatories, presumably-penned in "7." It is admittedly a legible, distinct seven in this case. But what if it looked like it could be a one or a seven? Or what if the signatories neglected to fill in the blank? Or what if the copy mailed to Perez bore one handwritten date and the copy in the Board's file bore a different one? The uncertainty resulting from such ambiguity would be eliminated by reliance on the more straightforward certification date.

3 . The Board's decision ends with the request that "the City Recorder certify this decision." And, as noted, the recorder also appreciated the importance of this step, taking pains in her transmittal letter to refer to the copy enclosed for Perez as "a copy of the official Certified Decision & Order."