Skip to Content

Strict and Substantial Compliance: Form vs. Substance

February 12, 2024 General News

When it comes to complying with statutory requirements for administrative appeals, should form ever trump substance? The court determined it should in Do v. Board of Regents. No. 1 CA-CV 22-0752, 2023 WL 6889720 (Ariz. App. Oct. 19, 2023). There, the court held the time for appeal had not started running after a student challenged a decision of the Arizona Board of Regents nearly nine months after she received the decision by email. Even though the student conceded she received that email, the court held that the statute strictly required service by certified mail. Is this fair?

Certified mail assures the addressee receives an item. It provides the sender with a receipt to confirm the piece of mail was sent, and it requires a signature from the recipient when it is delivered. This confirmation may be important for agencies serving decisions. However, when it is undisputed that an individual received notice, does it really matter how notice was provided? In other words, when actual notice is established, should substantial compliance with statutory requirements suffice?

The Do decision raises several questions about the limits and consequences of requiring strict compliance with statutory requirements. Should it matter whether it is an agency or an individual that fails to strictly comply with the statutory language? For example, what if an individual filing a bid protest does not serve it on the person designated to accept service, but the designee receives it anyway? Should that individual be held to the same standard as the Board of Regents in Do? Which approach best serves the public interest, fairness, and efficiency?