LACK OF SERVICE - CALIFORNIA ORDER - MAY 25, 2011
COURT - NO PERSONAL JURISDICTION
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal. Usually, notice is furnished by delivering a set of court documents (called "process") to the person to be served. Proper service of process establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff.
The underlying rationale for personal service of process as a prerequisite to the valid exercise of a judicial tribunal over a defendant finds its source in the Due Process clause of the 14th Amendment. This rationale, most often characterized as “notice and opportunity to be heard.” was discussed by the U.S. Supreme Court in a 1950 decision:
“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.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Mullane is quite clear on this point: “A mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315. These requirements serve as a “constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.” Greene v. Lindsey, 456 U.S. 444, 455 (1982).
The U.S. Supreme Court then defines “notice” and “opportunity to be heard” as a requirement that a potential defendant be apprised of the nature of the proceedings against him or her, and that he or she have adequate time to mount objections thereto: “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…” It remains undisputed that for more than one hundred years personal service has been the sine qua non for reliability and compliance with the constitutional requirements imposed by the 14th Amendment to the U.S. Constitution and decisional authority.
Personal Service of Process Remains a Critical Jurisdictional Foundation
The purpose of a service is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him. In so doing, such service permits the exercise of personal jurisdiction by a court and assures the defendant of reasonable notice of the action.
The means were readily at hand to provide the kind of notice that would have dramatically increased the likelihood of an adversarial proceeding in this case. The ease with which Leonard Cohen failed to serve the unlawfully modified 2011 California permanent order on appellant once it was entered is a testament to that fact. Even service by mail, or using the email addresses available to Leonard Cohen, would have been a better alternative. See Greene v. Lindsey, supra. Instead they impermissibly chose a method “substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, 339 U.S. at 315. In failing to afford appellant adequate notice of the California order registered against her, Leonard Cohen deprived appellant of due process of law required by the Fourteenth Amendment.
