Who pays for the postage when Mississippi justice court constables have to mail copies of summons and complaints under the new service rules?

Plain-English summary

When the Mississippi Supreme Court updated the Uniform Rules of Procedure for Justice Court in 2017, it changed how civil summons and complaints are served. Under Rule 14(d)(2), when personal service is impossible, the constable can serve a family member at the defendant's home AND must mail a copy of the summons and complaint within three days. Under Rule 14(d)(3), if family service also fails, the constable can post the summons and complaint on a door at the defendant's home AND must mail a copy within three days.

Before the rule change, the older statute (Section 13-3-5) made the court clerk responsible for the mailing in some posting cases. The new rule shifted the mailing duty to the constable, but did not say who pays for postage and supplies. DeSoto County's busy justice court estimated 8,500 summons per year, with most needing the new mailing step. The estimated additional cost: about $11,000 per year.

The DeSoto County Board's attorney asked six related questions. The AG's answers:

Q1: Who pays for postage and processing? The constable is responsible for the mailing under Rule 14, but the county pays for the postage and supplies. Section 19-7-23 has long required counties to provide their offices with "stationery and other necessary articles." A 1904 Mississippi Supreme Court case (Downing v. Hinds County) read "stationery" to include postage. So the county fronts the cost; the constable executes the mailing.

Q2: Can the court increase court costs to cover postage? No. Justice court costs are set by Section 25-7-25. That statute does not include a postage charge, so the court cannot just add one.

Q3: Can the county provide supplies (postage, envelopes) to constables? Yes, same answer as Q1. Section 19-7-23 obligates the county to provide them.

Q4: Can clerk personnel help the constable do the mailings? Yes. The constable is responsible for service of process, but no rule prohibits clerk personnel from assisting. Practically, this lets the clerk's office handle the mechanics while the constable retains legal responsibility.

Q5: Can the constable bill the board of supervisors for postage as an uncollectable fee? Moot, because the county is already required to provide postage under Q1.

Q6: When is service complete under the new rules?

• Personal service (Rule 14(d)(1)): complete on the date of service.
• Family-member service (Rule 14(d)(2)): complete on the tenth day after mailing.
• Service by posting (Rule 14(d)(3)): complete on the tenth day after mailing.

Two foundational legal points underpin the analysis. First, when a Supreme Court procedural rule conflicts with a statute, the rule controls (Newell, Delaney). So the new Rule 14 supersedes the older Section 13-3-5 mailing-by-clerk approach. Second, Section 19-7-23 and the 1904 Downing case have long required counties to supply postage as part of "stationery" for county offices.

What this means for you

For Mississippi county boards of supervisors

Under the opinion, the county must provide the postage and supplies for the constable's Rule 14 mailings. The AG relied on § 19-7-23, which requires the county to provide the courthouse and county offices with stationery and other necessary articles, and on the rule (Downing) that "stationery" includes postage. The opinion also held court costs cannot be raised to cover postage, because § 25-7-25 "does not contain any provision for other items of court costs, such as postage."

For Mississippi constables

The opinion concludes the constable, not the clerk, is "responsible for mailing summons and complaints when mailing is required under Rule 14." Rule 14(d)(2) and (3) require mailing "by first class mail, postage prepaid" within three days of the family-member delivery or posting, with service "deemed complete on the 10th day after the mailing." Under § 19-7-23 the county supplies the postage; under Rule 14(d)(2)-(3) the constable performs the mailing, though clerk personnel may assist.

For Mississippi justice court clerks

The opinion says that while the constable is responsible for service of process under Rule 14(d)(2)-(3), "there is no prohibition against court clerk personnel assisting the constable with this duty." The legal responsibility for service stays with the constable; clerk staff may help with the mechanics.

For litigants and parties served under Rule 14

The opinion sets when service is complete: for personal service under Rule 14(d)(1), "upon the date of service"; for service upon a family member and service by posting under Rule 14(d)(2)-(3), "on the tenth day after mailing." The constable must mail the copy within three days of the family-member delivery or posting.

For Mississippi rule-makers and the courts

The opinion rests on the rule that the Mississippi Supreme Court has inherent power to make procedural rules (Newell) and that a court rule controls over a conflicting statute (Delaney). On that basis the 2017 Rule 14 amendment, which makes the constable responsible for the mailing, governs over the older § 13-3-5 approach of mailing by the clerk.

Common questions

Q: Why is the constable responsible for mailing instead of the clerk?
A: The opinion reads Rule 14(d)(2) and (3) as placing the duty on the constable, noting (in the request it quotes) that "[a] plain reading only mentions the constable in the rule." The 2017 amendment to the Uniform Rules of Justice Court made that change from the older § 13-3-5 approach.

Q: What if the constable does not serve in substantial compliance with the rule?
A: The opinion quotes Rule 14(n)(1): "No fees for service shall be paid to a constable who has neither served nor attempted to serve process in substantial compliance to this rule." The constable's service fee is tied to that standard.

Q: What class of mail does the rule require?
A: Rule 14(d)(2) and (3), as quoted in the opinion, require mailing "by first class mail, postage prepaid." The opinion does not require certified mail or a return receipt.

Q: Where does the constable mail the copy?
A: Rule 14(d)(2) directs mailing "to the defendant at the address where the true copy of the summons and complaint were properly delivered," and Rule 14(d)(3) "to the defendant at the address where the true copy of the summons and complaint was posted." So the mailing address matches the delivery or posting address.

Q: When is service complete?
A: Under the opinion, for personal service (Rule 14(d)(1)) service is complete "upon the date of service," and for service upon a family member or by posting (Rule 14(d)(2)-(3)) it is "complete on the tenth day after mailing."

Q: Can the county charge a postage fee to plaintiffs through court costs?
A: No. The opinion says justice court "costs and fees are charged pursuant to Section 25-7-25, which does not contain any provision for other items of court costs, such as postage," so court costs cannot be increased to cover the mailing.

Q: Which court does this opinion concern?
A: It concerns service of process in justice court under Rule 14 of the Uniform Rules of Justice Court, requested by the attorney for the DeSoto County Board of Supervisors regarding county justice court constables.

Background and statutory framework

Mississippi's service-of-process framework for civil cases sits at the intersection of a statute (Section 13-3-5), a rule (Rule 14 of the Uniform Rules of Justice Court), and the long-standing relationship between courts and county fiscal officers.

Section 13-3-5 is the older statute. It described how summons could be served, including service by posting on the usual place of abode for multi-family dwellings and required the clerk to mail in some posting cases. The statute was the operative framework for decades.

Rule 14 of the Uniform Rules of Justice Court was amended in 2017 as part of the broader update of justice court procedure. It expanded the mailing requirement to family-member service and made the constable, rather than the clerk, responsible for the mailing.

The conflict-of-rules question: Mississippi follows the rule that the Supreme Court has inherent power to make procedural rules (Newell v. State, 1975). When a court rule and a statute conflict on procedure, the rule controls (State v. Delaney, 2011). So Rule 14, not Section 13-3-5, governs current practice. The AG opinion makes this point explicitly.

Section 19-7-23 is the county-supplies statute. It says counties shall provide their courthouses and county offices with "stationery and all other necessary articles." The phrase "stationery" had unclear scope when the statute was first enacted. The 1903 and 1904 Mississippi Supreme Court cases (Choctaw County v. Hughes, Downing v. Hinds County) read "stationery" broadly to include postage. The Court's reasoning in Downing was practical: "It is hardly conceivable that the lawmaking power designed all officers, great and small, to pay, out of their salaries, the postage on state or county official business." That common-sense reading has held for over a century.

Section 25-7-25 is the justice court cost statute. It enumerates the fees that may be charged in justice court. Postage is not listed. Under the principle that fee statutes are construed strictly (a court cannot create a fee not authorized by statute), the justice court cannot add a postage charge.

Section 25-7-27, the constables' fees statute, is referenced in the request (Q5, on whether the constable could request payment for postage as an uncollectable fee). The AG treated that question as moot given its answer that the county must provide postage. Rule 14(n)(1) ties the constable's service fee to substantial compliance with the rule.

The opinion's framework is internally consistent: the constable serves and mails; the county pays for the stationery (including postage); court costs stay where the legislature set them; and the constable does not earn a fee until substantial compliance is achieved.

Citations and references

Statutes:

• Miss. Code Ann. § 13-3-5, older service of process by posting (largely superseded by Rule 14 for justice court)
• Miss. Code Ann. § 13-3-5(2), former mailing-by-clerk requirement
• Miss. Code Ann. § 19-7-23, county obligation to provide stationery and supplies
• Miss. Code Ann. § 25-7-25, justice court costs and fees
• Miss. Code Ann. § 25-7-27, constables' fees

Court rules:

• Mississippi Rule of Justice Court 14(d)(1), personal service
• Mississippi Rule of Justice Court 14(d)(2), service upon a family member with mailing
• Mississippi Rule of Justice Court 14(d)(3), service by posting with mailing
• Mississippi Rule of Justice Court 14(n)(1), constable fee tied to substantial compliance

Cases:

• Newell v. State, 308 So. 2d 71 (Miss. 1975), Mississippi Supreme Court inherent rulemaking authority
• State v. Delaney, 52 So. 3d 348 (Miss. 2011), court rule controls over conflicting statute
• Downing v. Hinds County, 36 So. 73 (Miss. 1904), county must provide postage as "stationery"
• Choctaw County v. Hughes, 35 So. 424 (Miss. 1903), same

Prior AG opinions:

• MS AG Op., Barber (Oct. 5, 2001), county must provide necessities including postage
• MS AG Op., Cobb (Oct. 7, 2005), same
• MS AG Op., Nowak (Oct. 25, 2019), Section 19-7-23 codifies older Section 296

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/S.Barber_July-13-2021-Uniform-Rules-of-Justice-Court-Service-of-Process.pdf

Original opinion text

July 13, 2021

Samuel T. Barber, Esq.
Attorney for DeSoto County Board of Supervisors
Post Office Box 346
Hernando, Mississippi 38632

Re: Uniform Rules of Justice Court Service of Process

Dear Mr. Barber:

The Office of the Attorney General has received your request for an official opinion.

Background

In your request, you state:

[T]he Board requests an opinion on the new service of process rule and who is responsible for paying for postage and processing the mailings when a summons and complaint are required to be mailed under Rule 14(d)(2)-(3). Under Miss. Code Ann. Section 13-3-5, the clerk of the court has mailed copies of the summons and complaint when it was required to complete service. Under the new Uniform Rules of Justice Court, it is unclear if the Constables are required to complete the service by mailing or the clerk of the court can continue to mail the summons and complaints to complete service.

DeSoto County has a busy Justice Court. The Constables are responsible for serving upwards of 8,500 summons per year. It is estimated that under the new Uniform Justice Court Rule 14 that most of the summons served will have to be subsequently mailed to complete service. Under Section 13-3-5(2) only summons served by posting on the usual place of abode required subsequent mailing to be completed. Rule 14(d)(2) requires mailing for service on a family member and 14(d)(3), requires mailing, similar to the statute, for service by posting on the usual place of abode. Unlike the statute, the new rule does not state who is responsible for mailing the summons and complaint. A plain reading only mentions the constable in the rule. The increased mailings will be a significant expense, either on the constables or on the clerk's office. It is estimated that between time, and expenses it will cost around $11,000 to process the new required mailings. Beyond the actual costs, the new rule raises the question of when has the constable completed service? Your office has opined in the past that the constables are only entitled to fees once service is completed.

Questions Presented

1. Who is responsible and who pays for the postage and processing the mailing of the summons and complaint when required to mail under Mississippi Rule of Justice Court 14?
2. If the County, through the court clerk, can pay the cost of postage and mailings, can the court clerk adjust the court cost fees to account for new postage requirements?
3. If the constables are required to send the summons and complaints to complete service, would supplying postage, envelopes, and any necessary office supplies to the constables be a permissible expense under Section 19-3-40?
4. If the constables are required to complete the mailings of the summons and complaints, can court clerk personnel assist the constables in processing and sending the mailings out?
5. If the constables are required to complete the mailing of the summons and complaints and pay for the postage, is this a fee constables can request to be paid by the board of supervisors under Section 25-7-27 as uncollectable from the court clerk?
6. When have the constables completed service under the new rules, thus making them eligible to collect fees from the court clerk?

Response

1. The constable is responsible for mailing summons and complaints when mailing is required under Rule 14 of the Mississippi Rules of Justice Court. Pursuant to Section 19-7-23, the county must provide stationery, including postage, to the courthouse and all county offices.

2. No. Justice court costs and fees are charged in accordance with Section 25-7-25, which contains no provision for a justice court to charge additional mailing or postage fees.

3. See Response 1. Pursuant to Section 19-7-23, the county must provide stationery, including postage, to the courthouse and all county offices.

4. The constable is responsible for service of process under Mississippi Rule of Justice Court 14(d)(2)–(3), which includes mailing a copy of the summons and complaint. However, there is no prohibition against court clerk personnel assisting the constable with this requirement.

5. Our response to your first question renders this question moot.

6. For personal service, pursuant to Mississippi Rule of Justice Court 14(d)(1), service is complete upon the date of service. For "service upon a family member" and "service by posting," pursuant to Rule 14(d)(2)–(3), service is complete on the tenth day after mailing.

Applicable Law and Discussion

The Mississippi Supreme Court has the inherent power to promulgate procedural rules to govern judicial matters. Newell v. State, 308 So. 2d 71 (Miss. 1975). If there is a conflict between a statute and a procedural court rule, the court rule controls. State v. Delaney, 52 So. 3d 348 (Miss. 2011). As you note in your request, Section 13-3-5 requires the clerk of the court to mail a copy of the summons and complaint for service by posting if the defendant's usual place of abode is a multi-family dwelling. However, the Uniform Rules of Procedure for Justice Court were amended in 2017 and now require mailing a copy of the summons and complaint to complete service upon a family member and service by posting under Mississippi Rule of Justice Court 14(d)(2)–(3).

Mississippi Rule of Justice Court 14(d)(2), titled, "Service upon a family member," provides:

If service under paragraph (d)(1) cannot be made with reasonable diligence, then the constable shall deliver a true copy of the summons and complaint at the defendant's usual place of abode with the defendant's spouse or some other person of the defendant's family above the age of sixteen (16) years, and within three (3) days thereafter, by mailing a true copy of the summons and complaint, by first class mail, postage prepaid, to the defendant at the address where the true copy of the summons and complaint were properly delivered. Service shall be deemed complete on the 10th day after the mailing.

Mississippi Rule of Justice Court 14(d)(3), titled, "Service by posting," provides:

If service under paragraphs (d)(1) (Personal service) and (d)(2) (Service upon a family member) cannot be made with reasonable diligence, then the constable shall serve process by posting a true copy of the summons and complaint on a door of the defendant's usual place of abode that is reasonably calculated to provide notice of the action and, within three days thereafter, by mailing a true copy of the summons and complaint by first class mail, postage prepaid, to the defendant at the address where the true copy of the summons and complaint was posted. Service shall be deemed complete on the 10th day after the mailing.

Mississippi Rule of Justice Court 14(n)(1) provides:

Service of process by the constable may be taxed as court costs for an amount not exceeding the statutory amount allowed by law. No fees for service shall be paid to a constable who has neither served nor attempted to serve process in substantial compliance to this rule.

In response to your first question, pursuant to Section 19-7-23, the board of supervisors is responsible for providing the courthouse and all county offices with certain items necessary for the operation of such offices. This office previously opined that within reason the county must provide the necessities for county offices to do business, including postage and stationery. MS AG Op., Barber at 3 (Oct. 5, 2001) (citing Downing v. Hinds County, 36 So. 73 (Miss. 1904) and Choctaw County v. Hughes, 35 So. 424 (Miss. 1903)); MS AG Op., Cobb at 1 (Oct. 7, 2005) (same). In Downing, the Supreme Court of Mississippi, when determining whether a county should pay for postage required for the chancery clerk's official business, held:

We think the terms "stationery," "and all other necessary articles," in section 296 of the Revised Code of 1892, embrace necessary postage used in the public business. The word "stationery" itself is indeterminate, and is to be interpreted in the light of custom and reason. It is hardly conceivable that the lawmaking power designed all officers, great and small, to pay, out of their salaries, the postage on state or county official business. What would become of the State Superintendent of Education, the Governor, Secretary of State, Land Commissioner, Supreme Clerk, and others? Uniform usage in the state, tiding over all the legislative sessions, furnishes a practical construction of the statute which cannot be overlooked. So far as we know, corporations, banks, partnerships, and individual business enterprises include outlays for postage under the head of "stationery." But that word is re-enforced in the statute before us by the words "and all other necessary articles," and certainly postage stamps are indispensably necessary.¹

Downing, 36 So. at 73. Similarly, it is the opinion of this office that the county is responsible for providing the constable with necessary office supplies, including postage. Under Rule 14(d)(2)–(3), the constable is clearly responsible for mailing a copy of the summons and complaint.

In response to your second question, costs and fees in justice court are charged pursuant to Section 25-7-25, which does not contain any provision for other items of court costs, such as postage. Thus, court costs cannot be increased to cover the cost of the mailing.

With respect to your fourth question, while the constable is responsible for service of process under Rule 14(d)(2)–(3), we are aware of no prohibition against court clerk personnel assisting the constable with this duty.

In response to your final question, as provided by Rule 14(n)(1), "[n]o fees for service shall be paid to a constable who has neither served nor attempted to serve process in substantial compliance to this rule." For personal service, pursuant to Rule 14(d)(1), service is complete upon the date of service. For "service upon a family member" and "service by posting," pursuant to Rule 14(d)(2)–(3), service is complete on the tenth day after mailing.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General