the call now case one one seven two nine three million dennis huber vs the american economy association are you ready to proceed you make director of the responded that made the most appeal do on or five and or three mail the notice of appeal was received on four night  we have the record of course and we can see that this i'm below has in the upper right hand corner not a flag stamp or something like that it has rather  one else would it be my if you bought the stamp on the third why couldn't you have mail it on the let's talk about the rule and the rule of course is about bring clarity to the mailbox so a court can determine whether or not the person complied with the day of fil because it was so clear that the rule requirement i should be relaxed and so i just asked some questions by the record of whether that's true that that is in this let me follow up with a question on based on what justice tice is asked you and i don't know if this is a record so he was well as mr tracy can make it clear today but because i mean i'm sure with these labels i purchased post office as to what they did i think what would justice tice was asking is although we don't have that in our background interest oracle background i assumed that perhaps the person could get it the the sticker put in there and then grab it and say i'm going to take it home for some reason and then mail it the next day we're just saying that's not what typically happens and i guess in our experience and i guess that's what you're saying that a certification have the date of mailing there is none here and we have questions about what it is that is on the sly well or the only thing i can say is a u s postal service clerk's office it's the well it's not in the party's control whether or not the post marcus legible somebody else you know be correct so so you'd have to bank on you couldn't count on the fact that new mailed it because it takes something else to really make the final determination right document by him well obviously that's not true because it or thirty you can't know what happened at five o'clock you can't go into the future it's physically impossible to say that i did something in the future i mean you can execute the affidavit that has no legal significance because it's impossible to perform the acts warm to what is an affidavit something that is based upon personal knowledge and that could be testified to i swearing to something that is physically impossible to do if you were to hold that required affidavit in addition to a postmark you would also necessarily imply that you  does not argue with my logic about it being impossible to perform an act in the future and merely say essentially everybody's doing it you know when your kids ask you to go to a concert you everybody's going to say well just because everybody's doing it doesn't make it right to swear to something that is physically impossible to do in a penalizing for not doing it is pretty much of an injustice the rule itself late place postmark was not written to compel course to disregard clear evidence that a postmark provides a timely mailing of a document it's basically a form over substance in that case you have a david certainly serves purposes but it should not be used to replace other objective evidence it should but post i responded also says well it would nullify every other affidavit of s that's ludicrous because we're not talking about affidavits or person there's swearing to something on personal knowledge as personal knowledge and  maybe you touched upon it that let's just say we do find it legible only five develop postmark you said that then if it is four days after that i think you made the comment that under oh what i'm referring to with the four days it was stamped received on the night four days prior to that is the fifth which was a deadline so the fact that it was received on the night no question  east and gotten there in one day not from miami and i mean well i understand but there it doesn't necessarily take four days i mean he it could be two days it could be three day and that answers all of these questions and that was my argument saying that just to require an affidavit doesn't make it so and we know it can be manipulated by signing an affidavit which is not necessarily mean it's true recently but i know you haven't had a chance to say too much yet i understand there is very sure you are but i but i but i do think that the i understand and i think the court understands the reason good reasons first strict compliance is a general policy but looking at it or listening to the early commit before there are there is something appealing about saying that if indeed you have a valid postmark of this case what was it april third is a right if you have a valid postmark why is that not better evidence of the time it was mailed then an af taken out of the rule and should not be put back in the will by the second district as they did and hence the the result here i'm sure professor huber thinks is harsh and unfair he said it was unfair for they are they have to put it in the prison system mailing system not a post office box and they can take advantage of the mailbox rule in entering a supervisory order of vacating the us people versus smith case out of the fourth district and directing them to vacate their judgment holding a notice of appeal on timely because a one dash one zero nine verification was used with a service instead of an actual notarized affidavit you said that affidavit for all filings in the courts whether they're filing under the code which is where one day one comes from or filing under the rules which is what we're talking about today so no i'm not advocating strict compliance and that getting substantial ambiguous it's it simply files it requires a simple one page affidavit of service or shift so it's not a complex it's not it's not difficult to follow all you have to do is file that one piece of paper it's not a high bar but this the professor they're not doing he's also a licensed new york turn as well he did not do why you might ask why didn't he do well he said today the first postage meter a label and the supreme court said five hundred pennsylvania poll said that in the case of private meter labels are not reliable because they can be manipulated and they don't prove data mail they just prove the purchase of postage but that's ok go ahead is there a date referred to in that service basically certifying that it is going to be placed in the mail so perhaps it's different than some an affidavit asked of past x but it is it is a sort of thing that has been up and used in the courts for many years and as i said you could give a false affidavit like that to say you're going to do it and then you don't do it you know you're putting yourself at risk the  that he mailed the notice of appeal  wherever and then you but this that's only one step of the process the second step is you have to take it to a mailbox which which can all be you know avoided by a certificate of service the doesn't say may be prove also we've alluded to the fact the rule was changed to eliminate postmarks as proof of mailing there the hanson decision was dicta in a couple perhaps different ways in that one way it affirmed the trial court decision denying relief to the incarcerated prisoner in that case and also as i pointed out and hansen there was also a verified proof of service not just a postmark for the appellate hanson was a pro se incarcerated prisoner who had been convicted of first degree murder who had no access to post office and who is asserting an important constitutional right liberty here as noted the appellant is a professor and a licensed new york attorney i've and like you know i emphasize again that this is not a harsh rule the rule the rule is you have to file by the deadline and the deadline in this case was april fifth but the those four days late and the savings cost in the form of the mailbox rule was not complied with and therefore the fourth district decision was correct and we believe it should be affirm thank you will first to answer the question why i didn't mail an affidavit of service afterwards because i didn't know it wasn't included until it was brought out the respondent no way of knowing that or there is a way right i mean that's not accurate that there's no way it could have been mailed on heard if if you have it at the kiosk the requirement of the post office isn't there to mail it at the  time that they put on the label because they're not putting them away but you're putting them away right so you could get a phone call and have to run home and forget and i mean there is a way that it could have been mailed the mark indicating the date it was received at that location and the cancellation of the stamp and if you don't have that then aren't we in this area of not knowing when the mail was but when it's received three times what happens how do we know when it was mailed when it's received their stamp on that has black ink the name of the post office place of the post office the date that it was mailed right th