Wiggins v. Board of Review

OPINION PER CURIAM: Petitioner filed this petition for review, claiming the trial court erred in denying his motion for review. After reviewing the docketing statement, this court informed both parties that it was considering summary dismissal on the basis that the petition for review was not timely filed. Both parties filed memoranda in response to the court’s notice. The sole issue presented is whether the petition for review was timely filed. On October 22, 1991, the Industrial Commission denied petitioner’s motion for review and, as evidenced by the certificate of mailing, mailed its order the same day. On November 22,1991, petitioner filed his petition for review. Petitioner asserts that his petition should be deemed timely on the basis that he did not receive the Commission’s order until November 8, 1991. Utah Code Ann. § 63-46b-14(3)(a) (1989) provides that a party shall file a petition for judicial review of agency action within 30 days after the date that the order constituting the final agency action is issued. See also Utah R.App.P. 14(a). “Issue” is defined as “[t]o send forth; to emit_ To put into circulation ... To send out, to send out officially.” Black’s Law Dictionary 577 (6th ed. 1991). We also note that the Department of Employment Security has defined “issued” in the context of issuing a notice of determination as “sent through the U.S. mail or served in person.” Utah Code Admin.P. R475-6c-2. We hold that “issue” as used in section 63-46b-14(3)(a) means the date the agency action is properly mailed, as accurately evidenced by the certificate of mailing, or personally served. This con [1200] trasts with the rule governing appeals from judicial action, the timeliness of which are calculated with reference to the date of entry. See Utah R.App.P. 4(a) (“the notice of appeal ... shall be filed with the trial court within 30 days after the date of entry of the judgement or order appealed from.”). In this case, the certificate of mailing indicates that the order denying petitioner’s motion for review was mailed to petitioner and his attorney on October 22,1991. The petition for review was filed on November 22,1991, thirty-one days later. We conclude that the time for filing the petition for review commenced on October 22, 1991 when the agency decision was mailed, and not when petitioner received the agency’s decision. Petitioner also claims his appeal should be deemed timely because: 1) he had to obtain resources for filing the petition fee; 2) respondents have not objected to the petition for review; and 3) respondents have not been prejudiced. The timeliness of filing a petition for review is jurisdictional. Silva v. Department of Emp. Sec., 786 P.2d 246, 247 (Utah App.1990). On all appeals before this court, we have the responsibility to examine and question our own jurisdiction. Id. We therefore reject petitioner’s claims that his petition should be deemed timely on the grounds that he had to obtain resources, respondents had not objected, and respondents had not been prejudiced. Because the petition was not filed within thirty days of the issuance of the agency’s decision, we dismiss the petition for review as untimely.