[Originally published at vikinglaw.us]
A little over a year ago, Ted Folkman posted in his fantastic column, Letters Blogatory, about a mistaken ruling in Kim v. Lakeside Adult Family Home (Wash. App. 2015). When I read the opinion, I concluded that Ted’s description of a “mistake” was far too diplomatic. The court’s opinion was so wildly wrong that it conflicted violently with the Hague Service Convention. A bit hyperbolic perhaps, but I really did want to pull my hair out.
Last spring, I took it upon myself to submit an Amicus Brief (in Washington, an Amicus Memorandum) to the state Supreme Court, arguing that the opinion below allowed Washington litigants to contravene the letter, spirit, and underlying purpose of the Convention. The Appeals Court had read into the Convention an idea that simply wasn’t there—namely, that under Article 19, a U.S. plaintiff could avail himself of a method of service in a foreign country despite that country’s objections to Article 10’s alternative methods, so long as the method was available to litigants in that country’s courts.
In Kim, the plaintiffs hired a private agent to personally serve a Norwegian defendant at her home. Norway objects to Article 10, but the plaintiffs argued (without substantive citation to authority, as far as I can tell) that Norwegian law permits personal service by private agent. This runs contrary to the usual practice in civil law jurisdictions, where service of process is a sovereign function carried out almost exclusively by judicial officers. Setting that issue aside, however, even if private service is available in Norwegian cases, the plaintiff failed to show how such a method should apply to process sent from outside Norway. Therein lay my objection to the Washington App. Ct. ruling—it was distressingly bad law because it set aside Norway’s Article 10 objections altogether and created a wholly inappropriate doctrine.
If the Supreme Court failed to correct the disastrous holding that the Appeals Court had issued, the only recourse would be to the U.S. Supreme—and the odds of getting there are always slim (and the Norwegian defendant was a nurse… not sufficiently wealthy to carry the issue all the way to the Nine Eight Wise Souls in D.C.). I also feared that Wash. might decline to hear the matter because the plaintiffs cured their defect by serving the nurse properly via Norway’s Central Authority, rendering the Hague question moot.
Last week, reason prevailed (the opinion is linked from Ted’s follow-up column here). The Washington Supreme overturned the lower ruling, holding that “ensuring proper service” is an “issue of continuing and substantial public interest,” so mootness wasn’t a problem. Absent such a holding, the bad law would have remained. More importantly, the Court also held that “the Hague Convention does not convert a country’s domestic laws on service of process into laws governing service of process of documents coming from abroad.”
Now, I wish they’d stop calling it simply “the Hague Convention”, and I’ve railed about that issue (see here and here). Regardless, the Court wisely rejected the plaintiffs’ Article 19 argument and fixed a terrible horrible no good very bad mistake.
[Disclaimer: I’m a plaintiffs’ guy at heart. But my motivation on this one is to make sure that bad law gets torn down, and this one was really bad. If you’re going to do it, do it right…]
Photo by Harvey Barrison: The Temple of Justice, home to Washington’s State Supreme Court, via Wikimedia Commons.