Colorado State Archives
Executive Orders from the Administration of Governor Bill Owens 1999-2005
Ladies and Gentlemen:
I am filing with the Secretary of State House Bill 1121 "Concerning Substitute Service Of Process Upon The Secretary Of State Due To Defendant's Absence From The State In Civil Actions Arising From The Operation Of A Motor Vehicle." I vetoed this bill as of 11:00 a.m. today and this letter sets forth my reasons for doing so.
H.B. 1121 would allow substitute service of process upon the Colorado Secretary of State in any civil action against a Colorado resident or non-resident for damages or injuries sustained as the result of the operation of a motor vehicle if, after reasonable diligence and 120 days, the operator of the vehicle cannot be located. This bill raises serious constitutional and procedural problems, as well as being contrary to the tenets of tort reform.
The Constitution places limitations on the power of state courts to compel someone to appear before them. The Fourteenth Amendment prohibits states from depriving any person of life, liberty or property without due process of law. A state court that enters judgment against a defendant without providing a fair judicial procedure violates the Fourteenth Amendment.
H.B. 1121 may violate a defendant's right to due process because the defendant would not be provided with "actual" or even "constructive" notice of a legal claim. The fundamental component of procedural due process is to provide an individual with notice and an opportunity to be heard. Service upon the Colorado Secretary of State does not meet this standard.
Furthermore, the Colorado Supreme Court in Clemens v. District Court of Denver, interpreted a substitute service statute with more protective due process notice requirements than those proposed in H.B. 1121, and held that substituted service of process on the Colorado Secretary of State and ordinary mailing of notice to non-resident motorists is unconstitutional.
H.B. 1121 is inconsistent with the tenets of tort reform and the basic procedural standards of the legal system. One of the primary objectives of tort reform is to prevent abuse and misuse of the legal system. H.B. 1121 does not require a court to review the reasonableness of a plaintiff's efforts to locate and serve the defendant personally. In the absence of some type of judicial oversight, there is incentive for plaintiffs to circumvent this process and serve the Secretary of State prematurely in an effort to secure a default judgment. The result would be an increase in the number of Motions to Set Aside Default Judgments filed by defendants, alleging they could have and should have been personally served. This could create a procedural problem for the legal system that would waste limited judicial resources and cause delays in the adjudication of meritorious claims.
Finally, H.B. 1121 is unnecessary as the Civil Rules Committee of the Colorado Supreme Court is actively considering changes to Colorado Rule of Civil Procedure 4 that would arguably provide the same result sought by the proponents of H.B. 1121, but with adequate due process protections for defendants.
Accordingly, I have vetoed this bill.
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