Service by Publication: a Modern Alternative
| Publication year | 2022 |
Service by Publication: A Modern Alternative
Darrell L. Sutton
Samuel M. Lyon
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Service is perhaps the most basic practice of law imaginable. All plaintiffs must serve, and all defendants must be served, for a case to proceed forward. Without service, there is no case to settle—no legal battle to wage.
According to the Fourteenth Amendment of the United States Constitution, no state shall "deprive any person of life, liberty, or property, without due process of law[.]"1 Colloquially known as the Due Process Clause, this phrase has significant implications for the pendency of actions against defendants, and in particular, how those defendants are served.2 While "traditional" service methods, such as personal service, assure that defendants are aware of the actions pending against them, so-called "alternative" service methods may not provide the same assurances. Some alternative service methods may, in fact, run afoul of the Supreme Court of the United States' interpretation of the Due Process Clause, thus abridging the constitutional rights of the parties involved.
This leads to a necessary inquiry: do alternative service methods, in particular, service by publication, meet the requirements of due process
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as laid out by the Constitution? If so, how are the requirements measured relative to more traditional service methods?
A. Introduction to Service of Process in the United States of America
The Due Process Clause requires that state courts balance the state's interest against the individual's interest in deciding whether the notice provided under state law constitutes "reasonable" notice.3 Of course, the Constitution provides a floor, not a ceiling, as to what is or is not constitutional in cases where notice is required. While state laws can therefore afford more protection for individuals, they cannot put in place any laws that deny the Constitution's basic protections.4
If a cause of action intends to deprive a person of life, liberty, or property, the defendant must be given notice of the pendency of the action.5 This was set forth most clearly in Mullane v. Central Hannover Bank and Trust Company,6 wherein the Supreme Court stated that:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance[.] But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.7
In essence, the basic purpose of service of process is to ensure that defendants know of the existence of actions, such that they can defend
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themselves from the claims made against them.8 If a defendant is unaware of a claim, and a verdict is held against them, that would fail to comply with the basic protections of the Due Process Clause and would therefore be unconstitutional.9
State statutes discussing permissible service of process methods reflect this minimum standard of constitutional protection. In Georgia, for example, a defendant may be served by personal service, service upon a legal guardian,10 conspicuous service,11 or service at the "defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein."12 These methods reflect the—constitutional—minimum standard, in that they have the highest chances of providing a defendant with notice of the action pending against him or her in a court of law.13
Despite this, and while service has been described as among the most basic procedures of litigation,14 state and federal rules have long allowed different, arguably less reliable service methods. For example, Rule 4 of the Federal Rules of Civil Procedure (FRCP)15 allows service upon "an agent authorized by appointment or by law to receive service of process" in addition to the state's rules regarding service.16 While this may seem identical to Georgia's permissive service upon a legal guardian, this is not necessarily the case. Georgia allows service upon a legal guardian in the case of a legal minor or an individual who has been judicially declared of unsound mind.17 By contrast, Rule 4's language is much broader and would, for example, allow service upon an individual's attorney so long as they have been declared their agent
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for purposes of service.18 This difference, though minor, is emblematic of the distinction between service methods permitted under a state's statutory service scheme and those permissible under the federal rules.
One would think that a basic procedure such as service would have distinct, reliable methods for service—for the most part, that holds true. For example, the service methods allowed under Rule 4 and O.C.G.A. § 9-11-4 allow many of the same service methods, all of which provide assurances that the summons and complaint will make it safely into the intended individual's hands.19 After all, "[t]he fundamental requisite of due process of law is the opportunity to be heard."20
B. History of Alternative Service of Process & the Modern-Day Framework by Which Constitutional Sufficiency is Determined
However, what happens when an individual cannot be found, and therefore service cannot be perfected via "traditional" means? Serving every defendant is neither possible nor practical, and in some cases, defendants will conceal their location or evade service by traditional means.
To combat this, jurisdictions have established different methods by which a plaintiff can serve a defendant—so-called "alternative" methods of service, which allow service upon an individual by methods less likely to apprise a party of notice of the pendency of an action.21
The discussion regarding the validity of alternative service, in particular, service by publication, goes as far back as the eighteenth century.22 In the seminal case of Pennoyer v. Neff,23 attorney John Mitchell sued Marcus Neff in Oregon state court, attempting to recover for unpaid legal fees.24 Mitchell served notice of the suit by publication,
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not by personal service, upon Defendant Neff, who did not live in Oregon. In that underlying suit, the Oregon state court entered a default judgment against Defendant Neff—Mitchell was, therefore, able to attach Neffs later-purchased Oregonian land to satisfy the outstanding judgment. Once completed, Mitchell sold the property to Pennoyer, and Neff sued to recover the same.25
The United States Supreme Court disagreed with the Oregon state court, affirming the court of appeals' decision, which overturned the judgment. The Supreme Court held that service by publication was improper in this matter because Neff did not reside in the state of Oregon.26 For the judgment against Neff to be valid, there needed to be a sufficient nexus between the service and the notice apprised of the action by the service method used.27 Therefore, while the Supreme Court determined that service by publication is proper for in rem proceedings, it was improper for in personam proceedings.28 In the Court's opinion, personal service was the only valid method of service to provide the defendants the proper notice of the action pending against them for in personam proceedings.29 Because the proceeding was against Neff personally, and not against the property that was later taken, service by publication was improper.30
Of course, Pennoyer serves as a foundational case in many first-year law students' civil procedure classes and is well recognized beyond its relatively brief discussion of service by publication. As such, the underlying importance today is largely lost due to subsequent cases overruling Pennoyer's holding, whereby service by publication can now apply to both in rem and in personam matters.31 Furthermore, Pennoyer merely discussed service by publication, but did not expound on its many uses.
The framework for the modern determination of whether service comports with the constitutional standards of the Due Process Clause of the Fourteenth Amendment comes from Mullane vs. Central Hanover Bank and Trust Company.32 In Mullane, the Supreme Court:
[R]ecognized that prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the
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Fourteenth Amendment, a State must provide "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."33
In Mullane, the notice given to the beneficiaries of the trust at issue was by "publication in a local newspaper in strict compliance with the minimum requirements" of New York's banking laws.34 The local requirements for publication included filing a petition with the court and publishing at least once a week for four successive weeks the name and address of the trust company, a list of all participating trusts, and the name and the date of the establishment of the trust fund.35 The appellant argued that the notice and the statutory notice provisions were "inadequate to afford due process under the Fourteenth Amendment."36 It was not disputed that the only notice given to the beneficiaries of this trust was by publication in the local newspaper.37
"The fundamental requisite of due process of law is the opportunity to be heard."38 The right to be heard is of little worth, however, unless one is informed of the matter pending against him, such that he or she can choose whether to appear or to default, to "acquiesce or...
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