Opinion analysis: Court offers clear statement of black letter law on international service by mail
on May 23, 2017 at 11:20 am
In Water Splash v. Menon, the Supreme Court resolved whether the Hague Service Convention –formally known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters – prohibits or authorizes service by mail. Eight members of the court (Justice Neil Gorsuch did not participate) unanimously adopted the view advocated by the U.S. solicitor general, which one might also dub the Goldilocks approach: The convention neither authorizes nor prohibits service by mail. Instead, it does something in between, requiring courts to look to the rules of the sending and receiving jurisdictions.
A primary purpose of the Hague Service Convention is to require signatory states to designate a central authority that can handle cross-border service requests. But the convention does not require litigants to use that central authority to serve documents; it also authorizes other methods of service, such as via consular agents, and permits signatory countries to authorize still other methods via bilateral agreement or international law. However, the convention (at least in its English translation) is less clear about whether cross-border service by mail is permissible, giving rise to a split among lower state and federal courts.
In this case the court and parties agreed that Article 10 of the convention was the controlling provision. Specifically, Article 10(a) provides that as long as the receiving state does not object, the convention “does not interfere with” “the freedom to send judicial documents, by postal channels, directly to persons abroad.” In contrast, Articles 10(b) and 10(c) refer to the possibility of “effecting service” through “judicial officers, officials, or other competent persons of the State of destination.” Tara Menon, arguing that service by mail is impermissible under the convention, reasoned that “sending” judicial documents must mean something different than – and exclusive of – “effecting service” of them; otherwise, there would have been no reason for the convention’s drafters to use different words. This argument succeeded before the Texas 14th Court of Appeals, which set aside Water Splash’s default judgment against Menon based on its conclusion that Water Splash’s attempts to serve Menon by mail did not comport with the convention.
Rejecting Menon’s argument, Justice Samuel Alito began with one narrow point and one broad one. First, he observed that the word “send” “is a broad term, and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service).” And second, the sole purpose of the Hague Service Convention is the one suggested by its name as well as its drafting history: to regulate “service abroad.” In light of this purpose, Alito reasoned that it would be “quite strange” if Article 10(a) “concerned something other than service of documents.” Moreover, the convention’s limited purpose would render Article 10(a) superfluous if that provision applied only to documents transmitted for purposes other than service: Because the convention does not apply to non-service documents at all, there is no need for it to disclaim any interference with the freedom to send such documents by mail. Menon attempted to avoid this outcome by arguing that Article 10(a) could be read to permit service by mail only of “post-answer” documents, drawing a distinction between “service of process” and service of other documents, but Alito rebuffed that view as “lack[ing] any plausible textual footing in Article 10.”
Alito also offered several additional reasons for rejecting Menon’s argument that “sending” and “effecting service” must refer to different things. Among them, he observed that the choice to use the two different phrases could be explained if “sending” included both service and other types of delivery; in other words, Menon’s textual argument did not rule out the possibility that “send” was broader than (but inclusive of) “effect service.” Further, Alito explained that the “equally authentic” French version of the convention uses in 10(a) the word “addresser,” which is understood to refer to service. And if these reasons were not enough, the court concluded, “traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash’s favor.” Those tools include “the Convention’s drafting history, the views of the Executive, and the views of other signatories,” the latter two of which reflect the unbroken consensus of the last 50 years that the convention does not prohibit service by mail.
Ultimately, the court rejected Menon’s attempt to complicate a relatively straightforward case. (For example, the court did not engage with Menon’s constitutional arguments, including her assertion that it would be unconstitutional for the judiciary to defer to the executive branch’s interpretation of a treaty.) However, it did leave Menon a narrow window on remand: She may attempt to argue that Texas law precludes international service by mail, a point that the Texas appeals court did not reach. That is because Alito concluded his opinion with an important caveat: Although Article 10(a) “encompasses service by mail,” it does not affirmatively authorize it. “In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” Thus, anyone hoping that this interpretive puzzle would be resolved with a clear statement of black letter law should be satisfied: Provided that receiving jurisdictions do not object, sending jurisdictions may authorize (or not) cross-border service by mail.
