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Argument analysis: The court dives into Water Splash

On Wednesday, the court heard oral argument in Water Splash v. Menon, a case about the meaning of the Hague Service Convention. In particular, the dispute concerns Article 10 of the Convention, which has three parts. First, Article 10(a) preserves individuals’ “freedom to send” judicial documents abroad by “postal channels” when the receiving country does not object. In contrast, Articles 10(b) and 10(c) reference freedom to “effect service” across borders via judicial officers. The case turns on whether the freedom to “send” judicial documents encompasses service of a complaint by mail, or if – as Menon argued successfully in the Texas 14th Court of Appeals – that provision refers only to sending documents for other purposes. If Article 10(a) does encompass service by mail, then Water Splash’s complaint against Menon was likely properly served; if it doesn’t, then Menon was within her rights to ignore the complaint, as she did.

Representing Water Splash, Jeremy Gaston began by arguing that Article 10’s language is at least ambiguous, and that therefore the court should look to a virtual mountain of extrinsic evidence suggesting that the Convention’s drafters intended Article 10(a) to encompass service of process. As Gaston acknowledged, this required him to overcome the presumption that different words used in the same statutory scheme mean different things – which would suggest that, because Articles 10(b) and 10(c) use the phrase “effect service,” Article 10(a)’s use of “send” must refer to something other than service.

Attempting to clear that hurdle, Gaston asserted that the presumption is not “irrebuttable,” and that the text and structure of the Convention suggest that “send” means “serve” for several reasons. First, the Convention’s drafting process involved translating a prior agreement from French into English, and the French word “addresser” – translated as to “send” in Article 10(a) – encompassed service. Second, “it would be very odd” for a treaty on service to also contain “some provision … to allow states to object to the use of their mails for unofficial purposes,” particularly when countries did not prohibit service by mail before the treaty. Third, countries’ practices reflected that they understood 10(a) to include service by mail.

The U.S. solicitor general, represented by Elaine Goldenberg, argued in support of Water Splash. Nonetheless, Goldenberg began by asking the court to recognize a limit on the use of service by mail under the Convention. She began by observing that, at least where the state of destination does not object, Article 10(a) “is not interfering with freedom” to “send judicial documents by postal channels to persons abroad.” But that is different, she continued, from providing “affirmative authorization” for service by mail. And if the Convention does not authorize service by mail, authorization – if it exists – must come from “the law of the forum state.” Beyond that, Goldenberg buttressed Gaston’s arguments regarding practices of Convention signatories and the text and structure of the Convention, noting that “affirming the court below would take us out of step with the rest of the world,” and make service more difficult for United States plaintiffs.

Representing Menon, Timothy Hootman readily acknowledged that the Convention’s drafters intended “send” to mean “effect service,” suggesting that the choice of “send” was a scrivener’s error. Nonetheless, he argued that the plain meaning of the Convention was “crystal clear”: Because Article 10(a), in contrast to 10(b) and 10(c), does not use the phrase “effect service,” it does not apply to service of process. Justice Ruth Bader Ginsburg, however, questioned whether Hootman’s reliance on a distinction between service of process and service of other legal documents made sense in the context of civil law countries that “don’t have the notion of … having a process server tag the defendant.”

A significant portion of Hootman’s argument sought to convince the justices that, assuming they agree with his view of the plain meaning of the text of Article 10(a), they are then constitutionally prohibited from deviating from it because of separation of powers principles. In support of that claim, Hootman argued that the senators who voted to approve the Convention would not have expected that it included a possibility of service by mail. That is in part because the chair of the United States delegation to the Hague Conference told the Senate that the Convention tracked an existing federal law on international service, which, Hootman added, “doesn’t have anything in it about mail.” Elaborating on the unlikelihood that the Senate understood Article 10(a) to permit service by mail in some circumstances, Hootman did allow that the Senate record included a law review article that referred to service by mail. However, he added that the reference was “a little bitty snippet” in an article that was otherwise “a little bit mind-numbing.”

That argument prompted an extended and somewhat confused exchange. Justice Sonia Sotomayor asked Hootman whether, in his view, the Convention “constrict[ed] the rights of states” to permit service by mail. Hootman responded that Texas did not permit service by mail, which would mean that under the solicitor general’s reading of the Convention, Menon should prevail. Hootman’s assertion about Texas law was based on the decision under review: “Well, Texas doesn’t [allow service by mail] according to the majority opinion in this case, because all four of my points were sustained in the … lower court. And one of those points was specifically whether or not Texas authorizes service by mail.”

This statement prompted two responses. First, Ginsburg returned to Sotomayor’s larger point, asking whether the Convention eliminated the possibility of international service by mail in jurisdictions where it was otherwise permitted. Hootman appeared agnostic on this question, returning to his argument that he would win regardless of the answer because Texas did not permit service by mail. Second, Sotomayor, later echoed by Gaston, argued that Texas does appear to permit service by mail: Texas Rule of Civil Procedure 108(a), on service of process in foreign countries, allows service by certified mail, return receipt requested, or by other means ordered by the court. Gaston added on rebuttal that the 14th Court of Appeals’ apparent conclusion to the contrary, on which Hootman relied, was based on its reading of the Convention, not on Texas civil procedure. In response to Sotomayor, Hootman returned to his argument about the importance of the Texas court sustaining each of his points.

Hootman plainly faced an uphill climb. When Justice Elena Kagan asked if Hootman thought it was a problem “that no other court in the world has construed the treaty” as he advocated, he responded “That’s clearly a problem. That’s why I focused so hard on the text.” However, the justices seemed to be converging on the rule advocated by the solicitor general that the Convention does not prevent international service by mail where it is otherwise allowed by the forum state. If the court adopts that rule, then Hootman’s case would appear to hinge on whether Texas civil procedure authorized service by mail of Water Splash’s complaint.

Recommended Citation: Charlotte Garden, Argument analysis: The court dives into Water Splash, SCOTUSblog (Mar. 23, 2017, 12:08 PM),