Serving process is a tricky business

Jul 16th, 2010 by Michelle Lore

Minnesota Lawyer has a story this week on Tuesday’s decision from the Court of Appeals dealing with service of process.

In State v. Briard, a sheriff’s representative attempted to serve a subpoena on a woman by leaving the subpoena with her husband at their home in Frazee, which is near Detroit Lakes. The problem is that the subpoena required the woman to appear as a witness at her husband’s crim-sex trial. When she failed to appear she was charged with felony criminal contempt.

My first reaction, like at least a couple of the attorneys I talked to about the decision, was “duh,” why would you leave a subpoena with the defendant?

But the more I thought about it, and after talking with the prosecutor on the case, the more I thought well, what else are you supposed to do in this situation? How do you serve someone who doesn’t want to be served?

I can’t imagine a law enforcement officer is going to set up shop outside someone’s home and wait for them to eventually show up. And while a process server would probably do that, it’s going to cost you. And even then, what if the person purposely doesn’t come home, knowing that someone is trying to serve him or her?

I’m sure the situation in Briard isn’t all that common, although I could see it coming up occasionally in domestic abuse cases. And, of course, I don’t know what went on behind the scenes in the case, but it could be that the county simply got fed up with trying to serve the woman personally and felt it had no choice but to leave the subpoena with the husband at her home.

In any case, the Court of Appeals ruled that the service was improper, which is probably the right decision, at least on a practical level. But I am still left with the question of what should the state do in a situation like this where it isn’t able to personally serve someone?