OPINION

Due process is a key underpinning of our legal system

The Examiner

One of the first things they taught us at M.U. Law School way back in the day was the concept of due process.

This oft-cited term in the life of a law student comes from the due process clause of the 14th Amendment to the U.S. Constitution, which was ratified in 1868, right after the Civil War.

Ken Garten

The due process clause states: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

These 17 words are not cited specifically very often at all once a lawyer goes into practice. But they do provide the basic framework for the legal system we practice in, as it has been conceived since.

Due process of law has been held by the federal courts to require fundamental fairness in the functioning of the states’ court systems, one of the biggest parts of that being the concept of “notice and opportunity to be heard,” something that goes hand in hand with due process protection.

In the civil justice system, due process and notice and opportunity to be heard mean,  in part, that a party can’t be subject to a money judgment in the court system until and unless specific rules are complied with about giving the party notice of the action, so that they may respond and defend if so inclined.

And these same rules apply to all types of civil lawsuits, be it a suit for collection of unpaid debt, a contract dispute between two businesses, dissolution of marriage, a personal injury lawsuit or any other type of legal action brought against a party that might deprive them of their life, liberty, or property.

These rules generally require proof of personal service, hand-to-hand delivery of the court summons and the suit papers by the sheriff’s department of the county, or some other qualified person.

The sheriff’s deputy or other qualified person making service then signs off on a “return of service” stating the specific time, date, location and manner of service, which is then filed with the court record to confirm that the party being sued has received notice of the action as the rules specifically require, before the case can proceed against them.

Personal service can be effected on an individual by delivering the papers directly to them, or delivering them to a family member or roommate at the person’s “dwelling house or usual place of abode.”

Business entities are required by law to maintain a “registered agent” in the state, the name and address of the registered agent being a public record, to receive service of process on behalf of the company.

There are also a number of special rules for service and notice in specific circumstances that must be followed in civil lawsuits, such as when a company’s registered agent is absent from the official registered office of the company, or where a person to be served simply cannot be found.

Some circumstances permit service by publication – like we see in legal notices in the newspaper – but with limitations on the relief that can be granted based on publication service, because of due process considerations.

Sometimes, the hardest part of commencing a lawsuit is getting an individual served who cannot be located or is evading.

Nevertheless, these service and notice rules in the courts of Missouri and every other state are there for important reasons, and must be followed.

These service rules tend to be quite uniform from state to state, and are derived from a long line of cases over the years, including a number of landmark cases from the United States Supreme Court, where the federal courts have scrutinized state courts’ service and notice rules to determine compliance with the constitutional mandate of due process and notice and opportunity to be heard.            

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.