Two Routes to a Valid Method

Two Routes to a Valid Method

Mullane does more than ask what a sender desirous of actually informing the absentee would do; it also tells a state how to defend the method it chose. The reasonableness, and hence the constitutional validity, of any chosen method may be defended on the ground that it is “in itself reasonably certain to inform those affected” or, “where conditions do not reasonably permit such notice,” on the ground that “the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.”¹ That sentence is the working core of the notice standard, and the sections that follow apply it to publication, mail, posting, and newer technologies.

The two grounds work in sequence. The state first asks whether its method is reasonably likely to reach the people affected; if it is, no further defense is needed. Only where conditions do not reasonably permit such notice does a second question open: is the chosen method about as likely to bring home notice as the feasible and customary alternatives?² Convenience does not open that comparison. It opens only when notice reasonably certain to inform was out of reach.

Each route does its own work. The first turns the sincere-sender idea from the last section into a test: choose a method likely to reach the defendant. The second keeps that test from demanding the impossible. The state’s interest in bringing a matter to a final settlement can be served only if the claims of people outside the state can somehow be determined, and a reading of the Due Process Clause that placed impossible or impractical obstacles in the way could not be justified.³ Some people cannot be found, and for them no method could be reasonably certain to inform. The comparison to substitutes keeps a floor under that relief. The court must still use the best method actually available, so a sender who holds a surer channel cannot defend a weaker one by pointing to how hard it is to reach someone else. That is how one method can pass as to one recipient and fail as to another in the same proceeding, as Mullane held for publication.⁴

Reasonably Certain to Inform

Personal service of written notice within the jurisdiction is the paradigm of a method reasonably certain to inform. Mullane called it “the classic form of notice always adequate in any type of proceeding.”⁵ A server who puts the papers in the defendant’s hands removes any doubt that the message arrived, because the defendant learns of the suit at the moment of delivery. The certainty does not depend on where delivery happens. Personal service made outside the issuing authority’s territory still serves the end of actual and personal notice, whatever power of compulsion it may lack.⁶ That remark keeps notice and jurisdiction apart: a summons handed to a defendant in another state informs the defendant perfectly well, while the court’s power to compel an answer depends on a different showing.

The classic form is not the only acceptable one. Personal service has not in all circumstances been regarded as indispensable to the process due residents, and it has more often been held unnecessary as to nonresidents.⁷ The reason is practical. If hand delivery were the only acceptable method, every proceeding would depend on locating each interested person and bringing an official face to face with that person, and many proceedings would never reach a final judgment. So the first route asks how certain a method is to inform. Hand delivery is the surest, and any method that comes close also qualifies.

Mail to a current address qualifies next. Mullane called the mails “an efficient and inexpensive means of communication” and required at least ordinary mail to the record addresses of beneficiaries whose names and addresses the trustee held.⁸ Mailed notice, particularly by registered or certified mail, is very likely to inform the defendant, and Mullane did not require any beneficiary to be served in hand; it approved mail to the addresses in the bank’s files.⁹ The economics explain the result. A letter costs the sender little and arrives where the defendant lives, so the sender buys a high chance of informing for a small price, which is the trade a sender who truly wanted to inform would make. Delivery at the defendant’s home to a resident of suitable age belongs in the same group, because a household member who takes the papers can be expected to pass them along.¹⁰ Beyond that, the Supreme Court leaves the states on their own as to method, and this notice side of due process generates less case law than the question of the court’s basis for jurisdiction.¹¹

Mail and home delivery qualify as a general matter, but something the sender knows can undermine them in a particular case; the sections on returned notice and known incapacity take that up. The word “reasonably” in the test also matters. The Court accepted that reasonable risks that notice might not actually reach every beneficiary are justifiable, so a method does not lose its standing because it might occasionally miss.¹²

The nonresident motorist cases show the first route applied to a whole statute rather than a single delivery. Before International Shoe, states enacted statutes treating a nonresident’s driving in the state as implied consent to jurisdiction. The Supreme Court upheld those statutes when they required some reasonable effort to inform the defendant of the action’s pendency and struck them down when they required none.¹³ Mullane marked the line by comparing Hess v. Pawloski with Wuchter v. Pizzutti, one decision on each side of it.¹⁴ The statute in Wuchter failed to require the Secretary of State to notify nonresidents of the commencement of actions against them, and the Court held it unconstitutional even though the defendant in that case had actually received notice.¹⁵

The outcome follows from what the first route measures. A nonresident motorist statute is a rule for every driver it covers, so it is judged by the effort it demands of the sender in the ordinary case. A statute that demands no effort leaves each driver’s knowledge to chance, and one driver’s good luck cannot change what the statute requires of the next sender. Nor can the decisions be explained by the driver’s tie to the forum, because driving in the state supplied the same tie every time; the right to reasonable notice stands on its own under the Due Process Clause.¹⁶ A fact pattern that stresses that the defendant actually received the papers is therefore offering the argument that failed in Wuchter. The better question is what the statute or the sender’s method required, and whether that method was reasonably certain to inform.

No Worse Than Feasible Substitutes

The second route is a fallback, and the sentence that creates it states its own condition: where “conditions do not reasonably permit such notice,” the state may defend its method on the ground that “the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.”¹⁸ The test is comparative. It sets the chosen method beside the feasible alternatives and asks whether any of them would have done meaningfully better. A method earns no credit for being familiar or for being authorized by statute; it passes only when the sender could not have done better with the means at hand.

Publication lands on this fallback most often, because it almost never satisfies the first route. Mullane explained why. Chance alone brings a small-type advertisement in the back pages of a newspaper to a reader’s attention, and a reader who lives outside the paper’s normal circulation area is very unlikely to see it. Weighed against actual notice, the Court regarded such a notice as no more than a “feint.”¹⁹ Run through both steps, publication failed the first for every beneficiary in the fund. For the beneficiaries whose names and addresses were known, it failed the second as well, because mail was clearly more likely to inform them; as the Court put it, “the reasons disappear for resort to means less likely than the mails to apprise them.”²⁰ For the unknown beneficiaries, publication passed only the second step, because no other technique was more likely to give them actual notice.²¹

The second route exists because the certainty the first route demands cannot always be bought at any price. Mail needs an address and personal delivery needs a person to hand the papers to, so a claimant whom no one can identify or find can receive neither. If the Constitution required reasonably certain notice even then, the proceeding could never bind that claimant, and the court could never give everyone else a final settlement. The Court therefore approved publication as a customary substitute in cases “where it is not reasonably possible or practicable to give more adequate warning,” and for persons missing or unknown it accepted even an indirect and probably futile means of notification as all the situation permits.²² The justification is the missing alternative, and it disappears when an alternative appears. A newspaper notice that is tolerated for an unidentifiable claimant becomes “a mere gesture” when the sender holds the claimant’s address and a stamp.²³

An older assumption about property made publication look safer than it is, and Mullane described that assumption to explain why it did not apply. Publication has traditionally been acceptable as notification supplemental to other action that in itself may reasonably be expected to convey a warning.²⁴ An owner of tangible property usually arranges means to learn of any direct attack on possessory or proprietary rights, so the libel of a ship, the attachment of a chattel, or an entry upon real estate in the name of the law may reasonably be expected to reach the owner promptly, and a newspaper notice or posting then adds an extra measure on top.²⁵ A state could also assume that an owner who left property in the state either abandoned it or left a caretaker with a duty to report any jeopardy.²⁶ In that setting the seizure itself carried the warning, and publication merely reinforced it. The beneficiaries in Mullane had no such protection. Nothing had been abandoned, no seizure or similar act reinforced the advertisement, and the trustee who served as their caretaker became their adversary in the accounting.²⁷

Later decisions carried the point further. Older cases suggested that, because property is deemed to be in its owner’s possession, seizing it or posting notice upon it informs the owner; the Supreme Court explicitly rejected that notion in several cases decided after Mullane.²⁸ Publication alone is very unlikely to pass the first part of the test, so it can be adequate only if it passes the second.²⁹ The Court applied the same reasoning to a tax sale: publication and posting are designed primarily to attract prospective purchasers, so they are unlikely to reach interested owners who make no special effort to keep abreast of such notices.³⁰ In Greene v. Lindsey, the Court reviewed a statute that served process on tenants by posting the papers. Posting was not sufficiently likely to reach the tenants, and an easy way of improving the odds was available: dropping a second copy in the mail addressed to the tenant at the rental address. The Court held the posting procedure constitutionally inadequate under Mullane.³¹

When a fact pattern features a newspaper notice, the useful question is what better method was available, because no one will defend the newspaper as likely to inform. Suppose a plaintiff sues in a Florida federal court over a car accident and serves the defendant only by publishing notice in a county newspaper three weeks in a row. That method cannot pass the first route, and whether it passes the second depends on whether something better was open. Assume the drivers traded contact information after the accident. Then the plaintiff’s lawyer holds an address, and mail where the service rules allow it, or delivery to a household member at the defendant’s home, would be far likelier to inform. The publication fails even if a state statute authorizes it.³²

The plaintiff in Baidoo, a divorce action in a New York trial court, stood in a different position. The defendant’s last known address was an apartment he had left years earlier, and her search for a current address or workplace turned up nothing. The court found personal delivery impossible and the substitute-service methods futile, because those methods require knowing where the defendant lives or works, and it turned to its statutory power to order an alternative method reasonably calculated to give actual notice.³³ It did not treat a newspaper notice as the automatic last resort. It described publication as essentially statutorily authorized non-service, because local papers would be unlikely to inform the defendant and widely circulated papers would cost too much for the slim chance of reaching him, and it ordered service through Facebook.³⁴ The comparison looks for the best feasible substitute, and publication prevails only when it is as good as anything else the plaintiff could actually do.

The same lesson applies after a court has authorized publication. In Gaeth v. Deacon, counsel ran computer searches, mailed the papers to an address for the defendant, tried service by the sheriff, and then obtained a court order for service by publication. The Maine Supreme Court nevertheless granted relief from the judgment because other options for giving actual notice remained unexplored.³⁵ The court suggested that counsel could have hired an internet search service, published notice in the area where the defendant had last lived, or used college records to locate members of the defendant’s family.³⁶ An order authorizing publication therefore does not protect a judgment when practical alternatives remained, and counsel should exhaust the other practical means before asking for it. Statutes often build in the same order; New York’s, for instance, reserves court-ordered alternative methods for cases in which the ordinary methods are impracticable.³⁷ Whether the second route is open at all depends on what the sender knows or can learn. A person whose name and address sit in the sender’s files can be mailed, and a person no diligent search can identify cannot. Mullane sorted its beneficiaries along that line, and the next sections follow it.