On appeal from a default judgment in a mortgage foreclosure case where the plaintiff used abode service under 735 ILCS 5/2–203(a)(2) to tag the defendants, the Illinois Appellate Court faced an “interesting and important” question of first impression: “Can substitute service be effectuated under the Code of Civil Procedure when the summons is left with an adult who has a cognitive mental impairment?”
U.S. Bank sued Kathleen and Richard Zofkie. A special process server’s affidavit swore he went to their home, handed a copy of the summons to their 31-year-old son Kevin Zofkie, a resident of their household, then explained what it was and mailed a copy to his parents.
Section 2-203(a)(2) authorizes service of summons on an individual “by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode.”
Challenging the validity of the default judgment, the Zofkies argued that the bank failed to provide constitutionally adequate notification of the lawsuit because Kevin allegedly has a cognitive impairment. As recounted by the Illinois Appellate Court when the Zofkies appealed from an order that denied their motion to quash service, Kevin has autism, “lacks some of the intellect or skills to act independently” and “cannot make personal, financial, or legal decisions for himself.”
Acknowledging that the arguments presented by the Zofkies are “reasonable and appealing on a logical and emotional level,” the 1st District affirmed. Some states specify that substitute service is only permitted when the summons is left with a “competent member” of the defendant’s household, the court noted. And the federal rule says the recipient must be someone of “suitable age and discretion.” But there is no such requirement in Sec. 2-203(a)(2), “and we cannot add a requirement to the statute.” U.S. Bank Trust v. Zofkie, 2021 IL App 201232 (Sept. 30, 2021).
Here are highlights of Justice Nathaniel R. Howse Jr.’s opinion (with light editing and omissions not noted):
Defendants argue that the service of process in this case was ineffective because service was effectuated by delivering a copy of the summons to a someone with a cognitive mental impairment. Defendants contend that the service of process in this case was insufficient to satisfy due process, and they ask that we vacate the judgment of foreclosure for lack of personal jurisdiction.
The Code of Civil Procedure allows for the use of “substitute service” or “abode service” as a method for serving notice of a lawsuit on a defendant. Apparently, the issue of whether service can be considered proper when a plaintiff serves a defendant by substitute service by delivering the summons to a person with a cognitive mental impairment is an issue of first impression in Illinois.
Defendants argue that the trial court erred in holding that the code does not contain a certain mental competency requirement. Defendants’ challenge requires us to construe the code to determine if there is a mental competency requirement for the recipient of substitute service under Illinois law.
When we are required to construe a statute, our primary objective is to ascertain and give effect to the legislature’s intent.
Courts are not entitled to rewrite a statute to add provisions or limitations the legislature did not include. Illinois State Treasurer v. Workers’ Compensation Comm’n, 2015 IL 117418.
The statutory requirements for the person receiving substitute service are that the person (1) is a family member or a person who resides at the location with the defendant and (2) is 13 years of age or older. The code contains no other requirements for the person receiving the service in a substitute capacity. There is no statutory requirement that the recipient of substitute service be proved to be mentally competent in a legal sense, and we lack authority to add such a requirement to the statute.
Courts are not at liberty to depart from the plain language and meaning of a statute by reading into it exceptions, limitations or conditions that the legislature did not express.
Our beliefs about whether it might be sound policy to include a competency requirement on the person receiving substitute service are irrelevant to the analysis. The requirement defendant urges us to impose is not included in the statute, and we lack authority to include an additional requirement that is not expressed by the legislature.
There is no genuine dispute that all of the explicitly expressed requirements for proper substitute service were met in this case.
The special process server avers that he confirmed with Kevin Zofkie that defendants reside at the subject address, that he informed Kevin Zofkie of the contents of the process, and that the summonses were accepted by Kevin Zofkie. The special process server further avers that he mailed a copy of the process to defendants at the subject address.
Defendants, however, argue that the code contemplates the mental capacity of the person receiving the service of process because it requires the person to be 13 years of age or older and it requires the person to be informed about the contents of the summons. Defendants contend that those two requirements are in place to ensure that the person receiving the process can understand what is transpiring and then inform the defendant that an active court case exists.
Defendants argue that the age requirement and the requirement that the process server explain the content of the summons “clearly reflects that there is a competence requirement imposed upon the person receiving service.”
Defendants attached evidence to their motion to quash service to show that Kevin Zofkie has diagnosed autism, that he lacks some of the intellect or skills to act independently, and that he cannot make personal, financial, or legal decisions for himself.
All the points defendant makes are valid. However, while the code does speak to the age of the recipient, it does not speak to the requisite level of mental capacity the recipient must have for service to be valid.
Although the parties did not provide any authority from other jurisdictions on the specific question presented, our inquiry reveals that some other states’ substitute service laws require a level of mental competency on the part of the recipient of the substitute service. See, e.g., Wis. Stat. Sec. 801.11(1)(b)(1) (substitute service can be made by leaving the summons at the abode “in the presence of some competent member of the family at least 14 years of age”); Cal. Civ. Proc. Code Sec. 415.20(b) (substitute service can be made by leaving the summons at the abode “in the presence of a competent member of the household at least 18 years of age”). The federal rule for substitute service contains a provision that the recipient of the service of process must be of “suitable age and discretion.” Fed.R.Civ.P. 4(e)(2)(B).
The Illinois rule contains no such requirement for valid substitute service.
We find defendants’ arguments to be reasonable and appealing on a logical and emotional level, but the arguments do not prevail in an exercise of statutory construction. The code is clear in what it requires for proper substitute service to be effectuated, and we cannot add a requirement to the statute as defendant urges us to do.
On the other hand, we also share some of plaintiffs concerns about requiring a process server to potentially assess the mental capacity of a person accepting substitute service, as it would add a new dimension to serving process beyond the ascertainment of objectively verifiable facts.
Perhaps at some point the General Assembly will look to the substitute service requirements, as other states have done, and conclude that a minimum mental competency requirement for an adult who accepts substitute service is a sound matter of policy. At present, the code does not contain such a requirement.
In this case, defendants do not argue that the special process server knew or should have known that Kevin Zofkie did not or could not understand the implications of receiving the service of process. Instead, defendants rely simply on the fact that Kevin Zofkie subjectively could not understand the importance of the documents.
A special process server’s affidavit is prima facie evidence of proper service. The process server in this case avers that he explained the contents of the process to Kevin and that Kevin accepted the summons. The process server made no statement regarding any suspicion that Kevin Zofkie lacked capacity to understand what transpired.
The special process server’s affidavit, specifically, and the return of service, generally, are not impeached in any way. There is no indication in the record that defendants sought leave to question the process server about what he knew regarding Kevin Zofkie’s capacity.
Perhaps the circumstances of another similar case could lead to a different result in which substitute service on a person lacking mental capacity would not satisfy due process. We do not need to grapple with those questions to decide this appeal.
As the statute is written, the mere fact that a recipient of substitute service does not have the subjective mental capacity to understand its import is not a justification for quashing service of process, particularly where there is no allegation that the process server knew or should have known about the recipient’s lack of capacity.