Upholding due process.

In Jones v. Flowers, the Supreme Court held that the government must give people advance warning that it is going to sell their property because of unpaid taxes. (1) This is an important ruling about the requirements of due process, and it reaffirms the government's duty to provide meaningful notice before depriving people of their property.

The specific issue the Court considered was whether a notice of tax sale, mailed to the property owner but returned undelivered, is due process, or whether the government must take additional steps to provide notice.

The split in voting among the justices also makes the case interesting. Chief Justice John Roberts wrote the opinion, joined by Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg.

Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas dissented. Justice Samuel Alito did not participate because the case was argued before he joined the Court. This is the first split decision where Roberts joined the more "liberal" justices rather than Scalia and Thomas. (2)

In 1967, Gary Jones bought a house in Little Rock, Arkansas. For 30 years, he paid the mortgage each month, and the mortgage company paid his property taxes. The property was paid off in 1997, and after that, the taxes went unpaid and the property was certified as delinquent. Jones lived in the house only until 1993, when he and his wife divorced. She continued to live there.

In 2000, the commissioner of state lands sent a certified letter to the home, notifying Jones of the tax delinquency and the state's plan to sell the house. As the letter stated, unless Jones paid his back taxes, the government would put the house on public sale within two years--on July 17, 2002. Nobody was home to sign for the letter, and it ended up at the post office, where it was held for 15 days and then returned to the commissioner.

Two years later, the commissioner published a notice of public sale in the local newspaper. No bids came in, which under Arkansas law allowed the state to negotiate a private sale of the property.

The government sent Jones another certified letter. This one, too, was returned undelivered. At that point, the state put the home on the market and sold it to Linda Flowers. When Jones learned of the transaction, he sued. The Arkansas courts ruled that the state government had satisfied its due process requirements, and the case proceeded to the U.S. Supreme Court.

Government's duty

The Court based its decision on a seminal due process and notice case: Mullane v. Central Hanover Bank & Trust Co? In Mullane, the Court found that due process requires the government to provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (4)

The key question in Flowers was what the government must do when it learns that its attempt at notice has failed. Once the commissioner's letter was returned marked undelivered, did the government have an additional duty to try to reach Gary Jones?

Writing for the Court, Roberts answered this question by declaring, "We do not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed." (5) At the very least, Roberts wrote, "when a letter is returned by the post office, the sender will ordinarily attempt to re-send it, if it is practicable to do so." (6) This is especially important when the letter involves something as "important and irreversible" as the loss of a person's home. (7)

The state mounted three primary arguments. First, it claimed, Jones did not keep state officials informed of his new address as required under state law. But, the Court noted, someone's failure to file a change of address does not forfeit his or her right to constitutionally sufficient notice of a taking.

Second, the state argued, after Jones failed to receive a property tax bill and did not pay taxes, he was put on notice that his property was subject to sale. But the Court rejected this argument, too, explaining that "the common knowledge that property may become subject to government taking when taxes are not paid does not excuse the government from complying with its constitutional obligation of notice before taking private property." (8) Also, the state's argument would mean that it would not have to provide notice of any kind when there were delinquent taxes. Anyone who failed to pay property taxes would be deemed to know that the consequence could be a tax sale. Surely, the Court indicated, that is not sufficient to meet the requirements of notice under due process.

Finally, the state argued, the government can assume that an owner leaves his or her property in the hands of one who will inform the owner if his or her interest is in jeopardy. But the Court said that there is no reason that the occupant seeing a certified letter from the commissioner of state lands would know that it meant that the house was in danger of being put up for sale for unpaid taxes. Moreover, the Court found no evidence that the occupants of the house ever saw the letters. The Court concluded:

   Mr. Jones should have been more diligent
   with respect to his property, no question.
   People must pay their taxes, and the government
   may hold citizens accountable for
   tax delinquency by taking their property.
   But before forcing a citizen to satisfy his debt
   by forfeiting his property, due process requires
   the government to provide adequate
   notice of the impending taking. (9)

The Court then suggested that there were many steps the state could have taken to try to inform Jones of the pending sale. Re-sending the notice by regular mail would have meant that it would have been received at the home, not returned undelivered to the post office, as was the case with the certified letter. Also, the government could have re-sent the letter addressed to "occupant" or posted a notice on the front door of the house.

The Court said that publishing a notice in the newspaper a few weeks before the sale, as was done, was not sufficient, because a newspaper notice rarely accomplishes the goal of informing a person of a legal action. Few people read such notices.

However, the Court rejected Jones's argument that the government had the duty to look for his new address in the phone book or other government records such as income tax rolls. (10) The Court felt that this requirement would be too great a burden on the government.

Unanswered question

Flowers is an important reaffirmation of a basic tenet of due process: Before taking a person's property, the government has an affirmative duty to take steps to provide adequate notice. Indeed, it is disturbing that three justices--Scalia, Kennedy, and Thomas--dissented and would have allowed the government to sell a person's home with no more of an effort at notice than mailing a couple of letters that were returned as undelivered.

The key question, which the case does not resolve, concerns what constitutes sufficient effort by the government. It is troubling that the Court said the government did not need to look up the owner's new address in the phone book or in its tax or motor vehicle records. Such an effort would take a government employee only a few minutes. The Court dismissed such a requirement as too burdensome, but it is unclear why. The burden on the government would be minimal and would be outweighed by the important interest of protecting a person's home.

Still, Flowers is an important victory for due process. As is so often true in constitutional cases, the issue before the Court required a balancing of interests: in this case, the government's interest in efficiency and saving money against the individual's interest in receiving adequate notice before losing his or her home. The Court rightly said the government must do more than send a couple of undelivered letters to meet Mullane's basic command that there be "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (11)

Notes

(1.) 126 S. Ct. 1708 (2006).

(2.) For example, Roberts dissented along with Scalia and Thomas in Georgia v. Randolph, 126 S. Ct. 1515 (2006), and Cent. Va. Cmty. Coll. v. Katz, 126 S. Ct. 990 (2006).

(3.) 339 U.S. 306 (1950).

(4.) Id. at 314.

(5.) 126 S. Ct. 1708, 1716.

(6.) Id.

(7.) Id.

(8.) Id. at 1717.

(9.) Id. at 1718.

(10.) Id. at 1719.

(11.) 339 U.S. 306, 314.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law and Political Science at Duke University.