Mullane v. Central Hanover Bank & Trust Co.

339 U.S. 306 (1950)

Yeazell, pp. 175-183




Facts: Don’t know, and don’t care.  No, seriously…there’s this fund, and this stuff, and then something happens.  There are people who they can find, and people who they can’t find.  They publish something in a newspaper in New York without their names, just letting them know that something is coming up in court with regard to this common trust fund.  An attorney who is appointed to represent the interests of absent beneficiaries tries to argue that this constructive notice is unconstitutional.


Procedural Posture: The New York Surrogate’s Court held that the notice given was okay.  This decision was affirmed by the intermediate appellate court and the Court of Appeals of New York.  The appellant appealed to the Supreme Court.


Issue: May a state constitutionally dispense with personal service of process even if it knows how to contact a defendant?


Rule: A method of service of process must either be (1) “reasonably certain” to provide actual notice, or (2) the lesser of several evils, that is, a “feasible” form of notice that is “not substantially less likely” to give actual notice than other options.


Analysis: The Court says that you can’t just go through the motions, you actually have to try to let people know something’s going on in court they ought to pay attention to.


Conclusion: The Court ruled that constructive notice for unknown persons is constitutionally OK, but that constructive notice for known persons is unconstitutional.  The case was reversed and remanded for further proceedings.


Notes and Problems



a.      They may have believed that in any in rem action, constructive notice is appropriate based on Pennoyer.

b.     The court says that the in rem/in personam distinction no longer matters when it comes to notice.

2.     All beneficiaries who have an address on file must be served notice by mail (probably certified mail).  If a beneficiary cannot reasonably be located, constructive service may be substituted.


a.      It seems that the court cares about whether it appears you sincerely intend to give other parties notice of a pending lawsuit or if you’re just going through the motions.  If you need to give someone notice in Alaska and you’re in Hawaii, mail would probably be okay.  However, if you’re in Drinko and you need to give notice to someone at the Union, you should probably walk over and serve them personally.  I don’t think this decision bans service of process by regular mail at all.  I think it can be deemed adequate based on the circumstances.  I think you’d be safer with certified mail, though.  On the other hand, the present case deals with a “large number of small interests” rather than a small number of large interests.  The bigger the interest, perhaps, the greater the need for personal service.

b.     The rule seems to be that you either need to provide adequate actual notice, or pick the least bad of your “feasible” constructive alternatives.  Individual notice may not be necessary if it is onerously expensive and there exists an alternative form of notice that is much cheaper, yet only a little less likely to provide actual notice.  I think, in the end, the court simply has to balance the competing interests of fairness and efficiency just like they always do.

4.     It’s a safe assumption.  I guess constructive service of process could be a good procedural ploy, but you don’t want to risk losing jurisdiction because you could have just mailed the dude.


a.      So sometimes “process” really means “jurisdiction”.

b.     If you don’t get proper notice, the result is that the court that issued the notice will not have jurisdiction.


Back to The Constitutional Requirement of Notice

Back to Casebook Notes