ISSUE PRESENTED
The Fourteenth Amendment to the United States Constitution requires that the notice served on a defendant in a civil case must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Greene v. Lindsey, 456 U.S. 444, 456 (1982). As an alternative to personal service, Arkansas law allows a plaintiff to serve notice on a defendant via warning order. Ark. R. Civ. P. 4(f). Does notice by warning order comport with the Fourteenth Amendment’s requirement to apprise interested parties of the pendency of the action?
BRIEF ANSWER
Yes. The Supreme Court has held that constructive notice comports with the Fourteenth Amendment if the party to be served is “missing or unknown.” …show more content…
Grannis v. Ordean, 234 U.S. 385 (1914). The defendant cannot have a meaningful opportunity to be heard unless they are aware such an opportunity exists. Therefore, the defendant must be aware of the opportunity to be heard, and that opportunity can exist only through notification. See Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“[T]he central meaning of procedural due process [is] clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.”). This memorandum explains two points: (1) that constructive notice comports with the Fourteenth Amendment; and (2) that many courts are suspicious of the constitutionality of constructive notice, yet continue to rule that it is sufficient under the Fourteenth …show more content…
at 315. The Supreme Court continues to use the desire-to-inform standard to determine whether constructive service comports with the Fourteenth Amendment. See, e.g., Jones v. Flowers, 547 U.S. 220, 226-34 (2006) (describing the constitutional requirements of notice and finding that mailed notice which returned unopened to the sender did not meet Mullane's desire-to-inform standard); Dusenbery v. United States, 534 U.S. 161, 168 (2002) (applying Mullane's “reasonably calculated” standard); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797 (1983) (“[The Supreme Court] has adhered unwaveringly to the principle announced in
The Fourteenth Amendment to the United States Constitution requires that the notice served on a defendant in a civil case must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Greene v. Lindsey, 456 U.S. 444, 456 (1982). As an alternative to personal service, Arkansas law allows a plaintiff to serve notice on a defendant via warning order. Ark. R. Civ. P. 4(f). Does notice by warning order comport with the Fourteenth Amendment’s requirement to apprise interested parties of the pendency of the action?
BRIEF ANSWER
Yes. The Supreme Court has held that constructive notice comports with the Fourteenth Amendment if the party to be served is “missing or unknown.” …show more content…
Grannis v. Ordean, 234 U.S. 385 (1914). The defendant cannot have a meaningful opportunity to be heard unless they are aware such an opportunity exists. Therefore, the defendant must be aware of the opportunity to be heard, and that opportunity can exist only through notification. See Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“[T]he central meaning of procedural due process [is] clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.”). This memorandum explains two points: (1) that constructive notice comports with the Fourteenth Amendment; and (2) that many courts are suspicious of the constitutionality of constructive notice, yet continue to rule that it is sufficient under the Fourteenth …show more content…
at 315. The Supreme Court continues to use the desire-to-inform standard to determine whether constructive service comports with the Fourteenth Amendment. See, e.g., Jones v. Flowers, 547 U.S. 220, 226-34 (2006) (describing the constitutional requirements of notice and finding that mailed notice which returned unopened to the sender did not meet Mullane's desire-to-inform standard); Dusenbery v. United States, 534 U.S. 161, 168 (2002) (applying Mullane's “reasonably calculated” standard); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797 (1983) (“[The Supreme Court] has adhered unwaveringly to the principle announced in