The Colorado Supreme Court clarified on Monday that notifying a litigant via email that they are subject to contempt proceedings is not permitted, although one justice suggested the rules should allow for such a method going forward.

Under the procedural rules for civil cases, when a person is subject to contempt of court that does not occur in view of a judge, notice must be served “directly” upon them. However, after a man allegedly evaded his ex-wife’s multiple attempts to serve him with paperwork at his known address, a Larimer County magistrate permitted the notice to be sent to his Gmail account instead.

In a June 17 opinion, the Supreme Court rejected that tactic.

Because the rule “unambiguously requires physical service on the specific individual accused of contempt without any intermediate intervention,” wrote Justice William W. Hood III, “e-mail service is impermissible in contempt actions.”

Andrew Conners’ ex-wife asked that he be held in contempt for allegedly failing to pay child support. A process server attempted to deliver notification of the contempt proceeding to Conners at his address in California, but could not locate him. His attorney declined to accept the notice on Conners’ behalf.

His ex-wife accused Conners of “playing games” in an “attempt to avoid accountability” for his financial obligations. In response, Magistrate Kandace B. Majoros authorized Conners to be served with the contempt of court paperwork through his personal email address.

Conners then appealed directly to the Supreme Court, asking the justices to interpret for the first time whether the requirement to “directly” serve someone with a contempt notice includes email as an option. The goal of direct service, his lawyers argued, is to ensure the person facing contempt lays eyes on the notice.

In contrast, “sending an email does not guarantee that the message will ever actually be downloaded by the intended recipient,” Conners’ attorneys wrote. The Supreme Court “can prevent Colorado from becoming known as the state where a person might get arrested for missing an email.”

The Colorado Attorney General’s Office, representing Majoros, defended her ruling, arguing it properly reflected that “the likeliest way to ensure the Father received actual notice of the contempt motion” was to email him at the address he had been using during the underlying proceedings.

The Supreme Court sided with Conners, determining email notification is not literally service “directly” on the litigant.

“First, it’s not physical service. It’s digital,” Hood wrote. “To access the e-mail, the recipient must log on to the third-party server. The recipient doesn’t receive direct notice.”

Justice Melissa Hart wrote separately to say that while she agreed the court’s rule currently prohibits email service in contempt proceedings, it would be worth changing the rule to prevent “those who would evade the jurisdiction of our courts from doing so.”

“Under our current rules, Father was able to communicate with his attorney about the contempt motion, continue to litigate other matters in the case, and still evade the jurisdiction of the court regarding contempt,” she wrote. “I also recognize a good faith effort to effectuate service, and I think we should examine the possibility that our rules should provide a safety valve in a situation like the one we confront here.”

Conners, in an email to Colorado Politics sent from the same address where notice of the contempt proceeding was to be delivered, characterized his ex-wife’s attempt to serve him as minimal and her motion to hold him in contempt as “vexatious.” He did not directly respond to a question asking why the concern about litigants not seeing a contempt email applied to his case, where it was undisputed he was on notice of the proceedings.

Christopher J. Linas, Conners’ attorney, said he has never seen anyone suggest email notification is appropriate for contempt proceedings prior to his client’s case.

“I understand the frustration when someone is difficult to personally serve for whatever reason,” he said. But “if email service became widely tolerated, then someone, in some eventual future case, would inevitably be arrested for missing a court date because the notice was in an email that he or she missed. That would be a significant due process concern.”

The case is In the Marriage of Conners.