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ACLU/NCA Endorses Bill for Service of Process on MPD Officers
ACLU of the National Capital Area
1400 - 20th Street, NW, Suite 119
Washington, DC 20036-5920
March 3, 2008
The Honorable Yvette Alexander, Member
Committee on Public Safety and the Judiciary
Council of the District of Columbia
1350 Pennsylvania Avenue, NW
Washington, DC 20004
By Facsimile and U.S. Mail
Dear Councilmember Alexander:
Chief Cathy L. Lanier’s February 26th letter to the members of the Committee on Public Safety and the Judiciary opposing Bill 17-495 is grossly misleading. Bill 17-495 neither comes out of the blue nor denies police officers due process. Rather, it is necessary only because police officers have, for many years, actively assisted each other in evading service of process, and because the police department openly disobeyed the earlier law that the Council enacted to address this problem.
To this day, service of process on police officers continues to be a cat and mouse game. Twice in recent weeks we have encountered the usual problem with MPD officers’ resisting service of process; we were able to effect service only with the “off the books” intervention of MPD’s General Counsel -- a favor not available to lawyers who do not have a relationship with Mr. Ryan. Evasion of service by police officers reflects a disdain for the law on the part of those sworn to uphold it. It delays the course of justice and adds to the cost of the litigation.
The Council thought it had solved the problem when it adopted the Metropolitan Police Department Amendment Act of 2006. Unbelievably, the Metropolitan Police Department decided to disobey the plain commands of the Council. The Act required MPD’s implementing rules to designate one or more offices where service can be made on an official who is authorized, by regulation, to act as the agent for each and every sworn member, without the necessity of the member’s presence, in lawsuits arising out of the performance of the officer’s duty.
Instead, the department’s final rules subverted the Act by allowing MPD officers voluntarily to choose to designate (or choose not to designate) an agent for service of process. The law is clear: the department, not the member, must designate offices “where service shall be accepted on behalf of the sworn member.” The Department apparently believes that it has now overruled the Council’s decision.
The bill now before the Committee on Public Safety and the Judiciary (17-495) puts an end to this evasiveness. Service “may be effected by serving the papers to the office of the General Counsel of the Department during normal business hours or by sending a copy to the General Counsel by registered or certified mail.”
Chief Lanier’s letter says that a police officer’s right “is satisfied when [he or she] is personally informed that a legal matter is pending and can choose whether to appear or default, acquiesce or contest.” We agree with that statement. But the requirement of personal notification does not require a defendant to be notified directly by the plaintiff’s process-server; personal notification by a trustworthy third party, designated by law, accomplishes the goal just as well. This is called “substituted service,” and Chief Lanier’s argument that substituted service deprives officers of their constitutional right to due process has no basis in law, as her own lawyer has conceded.
In his testimony on Bill 17-495 on December 20, 2007, MPD General Counsel Terrence Ryan agreed with the ACLU that the Constitution does not require personal service. Alternative arrangements for service of process are commonplace. There are numerous provisions in the D.C. Code that require a person to accept service through an agent designated by law. The constitutional requirement of due process mandates only “that the particular form of substituted service adopted . . . gives reasonable assurance that the notice will be actual.” International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945). The law on this point has been so clear for so long that the most recent District of Columbia case was decided more than fifty years ago: Security National Life Insurance Co. v. Washington, 113 A.2d 749 (D.C. 1955) (upholding the constitutionality of a D.C. statute authorizing service of process on an out-of-state insurance company by serving the Superintendent of Insurance of the District of Columbia, who in turn forwarded a copy of the summons and complaint to the defendant by mail). Certainly service upon the Office of General Counsel of the MPD provides at least as much assurance that a police officer will receive actual notice as service on the Superintendent of Insurance provides that an out-of-state insurance company will receive actual notice. The provision for substituted service in Bill 17-495 fully meets the requirement for due process.
By routinely evading service of process, MPD officers have made a system of substituted service necessary. Moreover, MPD left the Council no other choice than to adopt Bill 17-495 when it chose to disobey the Council’s earlier enactment, the Metropolitan Police Department Amendment Act of 2006. We urge you to put an end to this lawlessness without further delay and pass Bill 17-495.
Arthur B. Spitzer
Stephen M. Block