There are at least four states in which the local TV meteorologist will have a tough time forecasting the legislative weather conditions for our industry in 2005. New Jersey and Texas are looking for sunny weather to promote their process server licensing legislation, while process servers in Oregon will do battle with the Oregon Board of Investigators on an issue that will likely, eventually, be a war zone in other states. South Carolina gets the dubious honor of being the first state to enact legislation that permits the electronic service of process in certain specified instances.
The Oregon Problem
About five years ago, after some 15 years of pushing and prodding, the private investigators in Oregon succeeded in getting the legislature to finally pass a licensing bill. A provision in that bill granted an exemption to "A legal process service company attempting to serve legal process." To my knowledge, Oregon is the only state which specifically identifies process servers as an exempted class in its PI licensing law, although it's something of an anecdotal mantra with process servers in virtually all states that 'their' state permits whatever skip tracing activity is required to get the paper served.
On January 10, the Oregon Board of Investigators (OBI), which governs the licensing of PIs, introduced legislation that would prohibit process servers (who are unregulated in Oregon) from doing any sort of investigative activity whether or not it involved the service of process. The Judiciary Committee has scheduled a hearing for January 31. Among those that will be testifying in opposition to the bill will be Aaron Crowe, President of the Oregon Association of Process Servers and I will testify on behalf of NAPPS.
Why is the OBI seeking to overturn legislation which was acceptable to PIs when the licensing bill was passed 5 years ago? The short answer: the OBI wasn't in existence at that time. And now that OBI, which is a self-funding entity, is in dire need of additional funds, and its possible they are looking at process servers as a potential funding source.. PIs pay at least $750 to get licensed in Oregon plus high renewal fees and the growth factor in applicants is lower than anticipated. And it will get still lower if the OBI has to raise fees in order to fund its operation.
I've seen this conflict between PIs and process servers brewing for some time in other states. Mainly I hear about the more outrageous cases, where an unlicensed person is flagrantly advertising and performing investigative services. One cannot fault PIs for trying to protect against this type of conduct.
But there is a broad distinction between an individual advertising and performing services which he or she is legally not authorized to do and a process server who is engaged in serving legal process. The work of the process server is governed by the state. The state sets the rules as to who may serve process and the manner in which it is served. Complying with these rules frequently requires the process server to go beyond the simple act of going to a defendant's home and handing the defendant a summons and complaint.
Additional contacts with neighbors and others may be required to locate the defendant. This may include the State Motor Vehicle Dept for driver's license or vehicle information; the US Postal Service for change of address or boxholder information; and a variety of other sources. Unless these contacts are made, the process server can't prepare an affidavit of due diligence outlining attempts to locate and serve the defendant, which are required in such instances as obtaining an order to serve by publication, to perform substituted service (in certain states), and to seek the Court's authorization to perform service in an alternate manner.
What is lost in this debate is the fact that process servers are doing the work of the COURT. And they are following the LAWS set forth by the State or the Federal Government pertaining to the service of process. They are in fact performing the single most important act in the litigation process-giving notice of the lawsuit to the defendant-because, without that notice, there is no service and the multi$$million lawsuit becomes just so much paper.
Both legislators and the US Postal Service have acknowledged the role of process servers. NAPPS played a vital role during the drafting of the 1994 Crime Bill in allowing process servers to have access to motor vehicle records in connection with cases in litigation (but some states have tightened restrictions). And when the US Postal Service made its radical privacy changes in 1994, "Process servers" and attorneys were the only private individuals given access to these records. PIs are allowed access only if they are acting in the capacity of a process server for that specific case.
Many NAPPS members are licensed PIs in the 42 states that require licensing and NAPPS does not support unlicensed activity that is clearly within the scope of the law's reach
But some latitude, as a practical matter, must be given where the process server is forced to do limited skip tracing and locating, and even surveillance, in order to locate and serve the defendant with papers that are in his possession.
What a nightmare we would create-if the process servers had to return papers unserved just so the lawyer could turn around and hire a licensed PI to do the locate…..and, presumably, the eventual service.
