Ours is a small community, this group of lawyers who pay attention to Hague Service Convention cases.*  Last Friday, a big one came down the pike: the Supreme Court has granted Certiorari in Water Splash, Inc. v. Menon, a Texas case in which a defendant was served by mail in Quebec.  Now, Canada doesn’t object to service by mail, but the Fifth Circuit and Texas appeals courts sure do.  Likewise the 8th Circuit, D.Kan., several Illinois and Colorado districts…  I think they’re all wrong, but I don’t wear a robe for a living.  [For the record, the 2d and 9th agree with me.  Really, they said so, right in the decisions:  “Aaron is absolutely correct.  In the distant future.  After he’s gone to law school.”]

We may finally get some resolution to the matter now that the Nine Eight Wise Souls have agreed to hear arguments.  Then again, they might split 4-4 (I doubt it here) and leave in place the goofy mess we’ve had for a couple of decades.

Regardless of how the decision comes down, I still argue that Hague mail service is a bad idea, but at least we won’t have to waste time on a circuit split.  I’m a little irked that I don’t get to be the guy who argues the case, but that’s how the ball bounces.  Were I able to stand before the Supremes (these Supremes; not these Supremes), this is where I’d start:

The 2d and 9th Circuits got it right (in Ackermann v. Levine, 1986, and Brockmeyer v. May, 2004, respectively).  The 8th and 5th (Bankston v. Toyota Motor Corp., 1989, and Nuovo Pignone, SpA v. STORMAN ASIA M/V, 2002, respectively) got it wrong.

Essentially, the split boils down to this, honorable Justices:  Article 10(a) of the Hague Service Convention allows parties to “SEND” documents to defendants in countries that do not object to the method.  All of the Convention’s other articles used the word “SERVE”, and that has a different connotation than “SEND” according to opinions that hold against Hague Mail.  Presuming that the drafters were careful people, said the Bankston majority, if they had meant “serve”, they would have used the word “serve”.

Drafting error equals fatality.  Sorry, Mr. Bankston… try again.

Hogwash, said the Brockmeyer court (bootstrapping Ackermann, the seminal case on the issue).  “Send” includes “serve”.  And then there’s my beef: why would Article 10(a) even be in a convention about SERVICE if the drafters didn’t intend it to be a valid method?

Not to be nit-picky, but the word “send” should be read in the same sense as the word “transmit” in Article 1:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.  (Emphasis mine.)

The use of transmit here means for service.  And send & transmit are synonymous.  I appeal arbitrarily to Merriam-Webster…

Send [transitive verb]
1.  to cause to go
2.  to cause to happen
3.  to dispatch by a means of communication

Transmit [transitive verb]
1. to send or convey from one person or place to another

Transmit, send, what have you… the drafters very clearly intended transmission as a necessary step in the act of putting a defendant on notice of a claim against him.  Send and transmit mean the same thing, and the Bankston court missed it when they said the drafters only used send in Article 10(a).  Heck, even Ackermann/Brockmeyer miss the better argument by equating send and serve.

I’ve agreed with the overall Brockmeyer reasoning all along.  Simply put, Bankston is wrongly decided because “send” includes “for service” in the meaning of the word as applied in Article 10(a).

But even if that argument doesn’t suffice, Chief Justice Roberts solidified a highly pertinent rule in King v. Burwell, the opinion upholding the Affordable Care Act:

If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010). But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 290 (2010) (internal quotation marks omitted).

Pretty compelling stuff, and that’s the idea that destroys the Bankston holding.

In the overall scheme of the Hague Service Convention, “send” is part of the service.  (Now, it might also be argued that a treaty is not a statute, but that’s another argument entirely; rules of construction are rules of construction.)

My prediction:  6-2 in favor of validity.

Now, where did I put the number of that bookie?  I saw it here a moment ago…


*To be sure, I first heard the Certiorari news in this morning’s daily digest from the excellent Conflict of Laws (.net) Blog, and then a short time later from Ted Folkman’s daily brief at Letters Blogatory.  Ted is providing comprehensive, ongoing coverage of the case’s progress here.  I highly encourage opposing viewpoints in the comments.