SUPREME COURT WATCH

By Lani L. Williams

 Lani L. Williams volunteers with the Local Government Lawyer's Roundtable.  

Due Process Considerations for Taking Property

In Jones v. Flowers, 126 S. Ct. 1708 (2006), the Court held the government must take further steps to comply with due process requirements, if practicable, when the government learns that its “reasonably calculated” notice of intent to take property did not reach the intended recipient. The 5–3 opinion was authored by Chief Justice Roberts. Justice Alito took no part in the decision.

Joining Justice Roberts were the dissenters in Dusenbery v. United States, 534 U.S. 161, 170 (2002), in which the Court held that certified mail sent to a prisoner comported with due process requirements even though the prisoner did not receive the certified letter and there was no evidence regarding procedures for actually delivering certified letters to prisoners after they were received by the prison. The primary holding of Dusenbery was that due process does not require actual notice.

The specific question before the Court in Jones was whether the government must take additional, reasonable steps in an attempt to provide notice before taking property and disposing of it at a tax sale when the original notice to the owner is returned unclaimed. Under the Fifth Amendment’s Due Process Clause, individuals whose property interests are at stake are entitled to “notice and an opportunity to be heard.” UnitedStates v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993). The analytical framework for due process cases regarding the adequacy of the method used to give notice is supplied by Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The framework provides that notice must be reasonably calculated to inform the property owners of proceedings that may directly and adversely affect their legally protected interests. The circumstances and conditions surrounding a particular case dictate the notice that is required. Walker v. City of Hutchinson, 352 U.S. 112, 115 (1956) (in a condemnation case, newspaper publication was not adequate notice when the property owner’s name was known to the city and was on the official records).

Background

In this case, the property owner, Jones, purchased the residential property at issue in 1967. He paid his mortgage each month for thirty years and the mortgage company dutifully paid the property taxes. However, once the mortgage was paid off in 1997, the property taxes went unpaid and the property became delinquent. In April 2000, the Arkansas Commissioner of State Lands (“Commissioner”) attempted to notify Jones of the delinquency and his right to redeem the property. The Commissioner sent Jones a certified letter containing information related to the proposed sale of the property (which was to occur two years later); no one was home at the time delivery was attempted and the letter was not claimed in the subsequent fifteen days.

Two years later, a few weeks before the sale of the property, the Commissioner published notice in a statewide newspaper regarding the proposed sale. Several months later, the Commissioner received a bid for the property. Another certified letter was sent to Jones at the address listed in the property records, notifying him of the impending sale. This letter was also returned unclaimed and the property was sold. After the tax sale, the purchaser posted an unlawful detainer notice on the residence, which was brought to Jones’ attention by his daughter.

Jones filed suit in Arkansas state court against the Commissioner and the purchaser, alleging the Commissioner failed to provide notice of the tax sale and Jones’ right to redeem the property in violation of due process. The trial court granted summary judgment to the Commissioner and the purchaser, finding both that the notice procedure followed by the state and that the Arkansas tax sale statute itself complied with federal constitutional due process requirements. The Arkansas Supreme Court affirmed, noting that under Dusenbery, 534 U.S. at 170, due process does not require actual notice. Thereafter, the Court granted certiorari to determine whether the government must take additional reasonable steps to attempt to provide notice before taking the property.

Analysis

As stated above, the Court held that the government must take further steps to achieve notice when the government learns its “reasonably calculated” notice did not reach the intended recipient. Court precedent has upheld the constitutional sufficiency of notice, reasonably calculated to inform the affected party, when the government had no indication that its attempt at notice had gone awry. SeeDusenberry, 534 U.S. at 170; Mullane, 339 U.S. at 315. In spite of this general principle, the Court has required the government to consider information in its possession prior to service regarding particular intended recipients regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case. For instance, in Robinson v. Hanrahan, 409 U.S. 38, 40 (1972), the Court held that notice of forfeiture proceedings sent to a vehicle owner’s home address was inadequate when the state knew that the property owner was in prison. Similarly, in Covey v. Town of Somers, 351 U.S. 141 (1956), notice of foreclosure by mailing, posting, and publication was inadequate because the town officials knew the property owner was incompetent and without a guardian’s protection. Id. at 146–47.

In light of the above, the Commissioner attempted to differentiate Robinson and Covey by arguing the cases in which notice had been found insufficient involved situations where the government was aware of information regarding the insufficiency of its proposed notice before it attempted notice. However, the majority noted the difficulty of explaining why due process would “settle” for the situation wherein the government learns after notice is sent, but before the taking occurs, that a property owner was not reachable by the method of notice chosen by the government.

While failure of notice in a specific case does not in and of itself indicate that notice was inadequate, Robinson and Covey teach that the government’s knowledge that notice was ineffective triggers the government’s obligation to take additional reasonable and practicable steps to affect notice. Though adequacy of notice generally is assessed at the time notice is sent, rather than after notice is sent, if the chosen method of notice provides prompt additional information regarding the chosen method of notice, this principle is not violated. Of particular importance to the majority in this case was the fact that the knowledge of the ineffectiveness of the notice was obtained two-to-three weeks after notice was attempted and the tax sale, pursuant to Arkansas statutory law, could not commence less than two years after notice was attempted—therefore, the state had ample time to act on its knowledge that notice was ineffective.

The government’s knowledge that notice has failed influences the “circumstances and conditions” that inform the evaluation of whether additional attempts at notice are required. According to the Court, a person who actually desired to inform a property owner of the government’s intent to take his or her property would not fail to take action on knowledge that notice had failed. Failure to follow up would be unreasonable, despite the fact that the original attempt at notice was reasonably calculated to reach the intended recipients.

In this case, in response to the returned certified mail form suggesting that Jones had not received notice, the state did nothing. Because there was good reason to suspect that Jones was no better off than if the notice had never been sent, the state in this case acted unreasonably by failing to attempt further, practicable, notice.

After concluding that further practicable notice should have been attempted, the Court went on to review whether possible reasonable and additional steps at notice existed, while also stating it was not responsible for prescribing the form of service that the government should adopt. Greene v. Lindsey, 456 U.S. 444, 455 n.9 (1982). If no reasonable additional steps to achieve notice existed, then the government could not have been faulted for doing nothing.

The Court then outlined several “reasonable” steps the state could have taken to further attempt notice. For instance, the state could have resent the notice by regular mail (certified mail may still be the initial preferred route because it provides safeguards against misdelivery, as well as providing proof that the notice was delivered). With respect to delivery of notice by regular mail, the Court makes the rather assumptive leap that occupants who would not retrieve or notify an owner of certified mail slips would take the time to either scrawl the new address on a notice sent via regular mail or might inform the owner directly of mail requiring their attention at the property. But, as the Court finds this to be a reasonable solution, state and local governments should be able to argue its sufficiency in future cases.

Notice attached to the front door or sent by regular mail and simply addressed to “occupant” also would have been a constitutionally sufficient secondary method of notification. The Court assumed that not only would an owner still residing at the property take notice of the posting or letter addressed to “occupant,” but also tenants would be inclined to inform the owner of a posting on the front door and would open a letter addressed to “occupant.” However, state and local governments should be slightly wary of simply posting notice in light of Greene, 456 U.S. at 452–53, in which notice was not sufficient because of knowledge that children or other persons frequently removed notices.

Notice by publication did not meet the Court’s standards for being “reasonably calculated” to achieve notice because “chance alone” brings a person’s attention to an advertisement in the back pages of a newspaper. Notice by publication is adequate only when it is not reasonably possible or practicable to give a more adequate warning.

The Court did agree that a search of the phone book and governmental records, such as income tax roles, was not necessary. The Court found that an open-ended search for a new address imposes burdens on the state significantly greater than the relatively easy methods outlined above (regular mail delivery to owner, posting, and regular mail addressed to “occupant”).

The dissent argued that notice was reasonable at the time it was attempted and that subsequent information regarding the notice’s failure did not require further action on the part of the government. Justice Thomas specifically saw the decision in this case as an attack on Dusenbery, in which the government did not know whether the certified letter was in fact delivered to the prisoner, yet the Court upheld the method of service. He would have drawn a bright line for determining what is reasonable; setting the line at the time notice is attempted.

Looking Forward

Whether attempts at notice comply with due process will be governed by the facts surrounding each case. What the government knew and when it was known will be key among these facts (the Court’s specific note of the tax sale being two years after notice certainly weighed against the state; had the sale occurred two months after notice was attempted, the case may well have turned out differently).

Some twenty-two states currently require some form of notice beyond certified mail before taking property in these circumstances, such as notice to occupants of the property and posting, with four states requiring a diligent search for the owner. Certainly, those governments that currently require only notice by certified mail, and that do not make provisions for further action when this fails, will want to incorporate at least one additional follow-up method blessed by the Court for situations such as this case presented.