Jones v. Flowers
Encyclopedia
Jones v. Flowers, , was a decision by the Supreme Court of the United States
involving the due process
requirement that a state
give notice
to an owner before selling his property
to satisfy his unpaid taxes
. The Court ruled, 5-3, that after a mailed notice was returned unclaimed, a state
was required by the Due Process Clause of the Fourteenth Amendment
to take additional reasonable steps to notify the owner before the sale could proceed. The Court's opinion was delivered by Chief Justice
John G. Roberts, his fourth majority opinion after his confirmation to the Court in 2005 and his first to provoke any dissenting opinion
s.
The Court had last addressed the issue of notice in Dusenbery v. United States, 534 U.S. 161 (2002), which held that the government need only take steps reasonably calculated to provide notice even if actual notice
is not achieved. The four justices who dissented in Dusenbery now formed the majority with Roberts in Jones v. Flowers, distinguishing the prior case on the basis that the government in Dusenbery did not know that its method of notice had failed before the taking occurred. Justice Clarence Thomas
, in dissent, believed the Court was instead undermining Dusenbery, which he argued implicitly dictated a result contrary to the majority's decision.
, in which he lived with his wife until they separated
in 1993. Jones then moved into an apartment in Little Rock, and his wife continued to live in the house. Jones paid his mortgage
each month for 30 years, and the mortgage company paid Jones' property tax
es. However, after Jones paid off his mortgage in 1997, his wife failed to pay the property taxes, and the property was certified as delinquent.
In April 2000, Mark Wilcox, the Arkansas
Commissioner of State Lands, attempted to notify Jones of his tax delinquency, and his right to redeem
the property, by mailing a certified letter
to Jones at the house. The packet of information stated that unless Jones redeemed the property, it would be subject to public sale two years later on April 17, 2002. Nobody was home to sign for the letter, and nobody appeared at the post office
to retrieve the letter within the next 15 days. The post office returned the unopened packet to the Commissioner marked "unclaimed."
Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in the Arkansas Democrat-Gazette
. No bids were submitted, which permitted the State to negotiate a private sale of the property. Several months later, Linda Flowers submitted a purchase offer. The Commissioner mailed another certified letter to Jones at the house, attempting to notify him that his house would be sold to Flowers if he did not pay his taxes. Like the first letter, the second was also returned to the Commissioner marked "unclaimed." Flowers subsequently purchased the house at approximately a quarter of its fair market value
. Immediately after the 30-day period for postsale redemption passed, Flowers had an unlawful detainer notice delivered to the property. The notice was served on Jones' daughter, who contacted Jones and notified him of the unpaid taxes and the tax sale.
. The Commissioner and Flowers moved for summary judgment
on the ground that the two unclaimed letters sent by the Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers, concluding that the Arkansas tax sale statute, which set forth the notice procedure followed by the Commissioner, complied with constitutional due process requirements.
Jones appeal
ed, and the Arkansas Supreme Court
affirmed the trial court's judgment. The court noted Supreme Court precedent stating that due process
does not require actual notice
, and that attempting to provide notice by certified mail satisfied due process in the circumstances presented.
to resolve a conflict among the Circuits and state supreme courts concerning whether the Due Process Clause requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered. The United States Solicitor General
was granted leave to participate as amicus curiae
, and argued in support of the Commissioner's position.
In a five-justice opinion delivered by Chief Justice
John G. Roberts, the Court reversed the Arkansas Supreme Court and ruled that, under the circumstances, the State's sale of Jones' property violated due process. It held that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Justice
Clarence Thomas
filed a dissent
, arguing that the State's attempts went beyond any requirements the Court's prior precedents had established.
requires a State to provide an owner with notice
and an opportunity to be heard before it may take his property and sell it for unpaid taxes
. The Court had recently ruled in Dusenbery v. United States, 534 U.S. 161 (2002) that the government did not violate due process
by sending notice to the jail where the property owner was imprisoned and allowing a prison official to sign for it, even though the prisoner never actually received the notice. Dusenbery established that due process did not require actual notice
prior to a governmental taking of property, but instead only that the government attempt to give notice by a method "reasonably calculated, under all the circumstances," to inform all interested parties.
Based on Dusenbery as well as earlier cases, the State argued that once it provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing him a certified letter, due process was satisfied. However, the Court pointed out that in each of those prior cases, the government had subsequently heard nothing back indicating that its attempts had failed. In Dusenbery, for example, the government knew that someone at the prison had signed for the letter. The knowledge that notice had failed was instead "a new wrinkle," and the question before the Court was therefore whether that knowledge constituted a circumstance that alters what notice is required. The Court believed that most federal courts of appeals
and state supreme courts to have addressed this issue have decided that the government must do something more when it learns its attempt at notice has failed before it can sell real property in a tax sale. Many states also require by statute more than a simple notice by mail to the delinquent owner.
The means by which service of notice is attempted "must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," Whether a particular method is adequate is determined by balancing
the "interest of the State" against "the individual interest sought to be protected by the Fourteenth Amendment." In this case, the Court, emphasized, "we evaluate the adequacy of notice prior to the State extinguishing a property owner's interest in a home," which the Court considered "an important and irreversible prospect."
The Court did not believe that someone who actually desired to inform the owner would do nothing further when a certified letter is returned unclaimed, and satirized
the State's position by analogy. "If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman
, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one ‘desirous of actually informing’ the owners would simply shrug his shoulders as the letters disappeared and say ‘I tried.’ Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman."
The Court noted prior cases in which the government had been required to take notice of "unique information about an intended recipient" that it had known prior to its attempt at notice. In Robinson v. Hanrahan, 409 U.S. 38 (1972), the Court had ruled 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), the Court held that notice of foreclosure by mailing, posting, and publication was inadequate when town officials knew that the property owner was incompetent and without a guardian's protection. The Court did not see a distinction between having such knowledge prior to attempting notice and having such knowledge after notice was sent but prior to the actual taking. Just as the government's knowledge in Robinson and Covey that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice, the government's knowledge should similarly be taken into account in assessing the adequacy of notice in this case. Though Justice Thomas
’ dissent characterized the State's knowledge that its notice was ineffective as "learned long after the fact," the Court pointed out that it had actually received the returned notice within three weeks; under Arkansas law, it had two years before it could proceed with the sale.
was only permissible when it was not possible or practicable to give more adequate notice. If there were no such options for the State, "it cannot be faulted for doing nothing."
The Court believed that resending the notice by regular mail would have been a reasonable step, given that the return of the certified letter meant either that Jones was not home when the postman called, or that he no longer lived at that home. Regular mail would allow the letter to be left without a signature, and it would have made it possible for the letter to be forwarded to him. The State also could have simply posted a notice on the front door of the home or addressed the mail to "occupant," which are steps that most states require in their tax sale statutes. The Court believed that in either case, the current occupant of the home would be likely to read the notice and attempt to alert the owner, because a change in ownership would directly affect them. The Court observed that Jones had actually first learned of the tax sale after he was alerted by one of the occupants.
Though the Commissioner argued that even those additional steps were burdensome, the Court countered that it had instead undertaken "the burden and expense of purchasing a newspaper advertisement, conducting an auction
, and then negotiating a private sale of the property." The Court considered the assertion of burden further undermined by the requirement in Arkansas that notice to homestead owners be accomplished by personal service
if certified mail is returned, and the fact that Arkansas transfers the cost of notice to the taxpayer or the tax sale purchaser, The Commissioner offered no estimate of how many notice letters are returned, and the Court believed that nothing supported the dissent's assertion that the Commissioner must now physically locate "tens of thousands of properties every year."
The Court also disagreed with the U.S. Solicitor General
's argument that requiring further effort when the government learns that notice was unsuccessful would cause the government to favor methods "that do not generate additional information," such as relying entirely on regular mail instead of certified mail. The Court considered this unlikely because the government is always being asked to prove that notice is sent and received, and the documentation that certified mail provides gives the State protection against false claims that notice was never received. The Court noted that this protection "comes at a price — the State also learns when notice has not been received," information that under the circumstances of this case, the State cannot simply ignore.
The Commissioner also argued that further measures were not required because Jones had a legal obligation to keep his address updated, that he was on inquiry notice after failing to receive a tax bill and pay his property taxes, and that he was obliged to ensure that the occupants of his property would alert him if it were in jeopardy. Though acknowledging that Jones should have been more diligent regarding his property, the Court rejected that any of those conditions could amount to a forfeiture of his due process right to receive adequate notice. The method of certified mail furthermore made it impossible for the occupant to notify Jones, because only Jones could have signed for the letter.
The Court clarified that it was not its responsibility to dictate what form of service
that the government should adopt, or to attempt to redraft a State's notice statute. Instead, "[t]he State can determine how to proceed in response to our conclusion that notice was inadequate here." The Court considered it sufficient for it to determine "that additional reasonable steps were available for Arkansas to employ before taking Jones' property."
dissented
, arguing that under Court precedent, the State's notice attempts clearly satisfied due process requirements. He wrote that the title
to property should not turn on "wrinkles" (as the Court had characterized the issue in this case) that Thomas believed were caused by Jones' own failure to protect his property. He further added that "[t]he meaning of the Constitution should not turn on the antics of tax evaders
and scofflaws."
According to Thomas, the Court's inquiry should have ended with the conclusion that the State's chosen method of notice by certified mail was reasonably calculated to inform Jones of proceedings affecting his property interest. He argued that this finding was "reinforced by the well-established presumption that individuals, especially those owning property, act in their own interest." The State was accordingly free to assume that the address it had on record was correct and up-to-date, or that he had left a caretaker at the house who would inform him of the notice. Whether a method is reasonably calculated to give notice is furthermore determined at the time the notice is sent, a principle Thomas believed followed from Court precedent. He argued that the Court had abandoned this by basing its decision on information that was unavailable when notice was sent, and that all of its suggested reasonable methods were "entirely the product of post hoc considerations."
Thomas believed the Court's holding in Dusenbery that actual notice is not required implied that the government is not required to take additional steps when it becomes aware that its attempt at notice has failed. He accordingly characterized the Court's ruling as "little more than a thinly veiled attack on Dusenbery." Thomas stated that the majority's logic would require a State to consider additional means every time a doubt is raised as to whether notice has been achieved, imposing a requirement with "no natural end point" that Thomas thought effectively required "something close to actual notice."
Regarding the Court's "storm drain" hypothetical, Thomas thought it actually raised a more difficult question of "when notice is sent—at the precise moment the Commissioner places the mail in the postal carrier's hand or the split second later when he observes the departing carrier drop the mail down the storm drain. That more difficult question is not before us in this case because Arkansas learned long after the fact that its attempts had been unsuccessful."
Thomas wrote of the Court's proposed alternatives that, "aside from being constitutionally unnecessary, [they] are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State." Regular mail lacks the paper trail of certified mail, and Thomas thought it was just as likely that mail addressed to "occupant" would be thrown out as junk mail as opened and read as the Court had speculated. He also stated that the Court had previously concluded that posting notices was "an inherently unreliable method."
Thomas observed that 18,000 parcels of delinquent real estate are certified each year in Arkansas, and that the Court's ruling would accordingly impose a burden on the State of locating thousands of delinquent property owners because of the "inefficiencies caused by delinquent taxpayers." Thomas instead believed that the Arkansas system requiring the property owner to maintain a current address with the state taxing authority was reasonable and sufficient.
The case was perceived as an interesting look into the new Roberts Court, as the new Chief Justice chose a decision for his fourth opinion that was contrary to the position of Bush
administration lawyers, Justices Scalia and Thomas, "the court's two best-known conservatives," and Justice Anthony Kennedy
, who was expected to be the Court's swing vote
following the retirement of Justice Sandra Day O'Connor
. This was the first majority opinion by Roberts to provoke any dissents.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
involving the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
requirement that a state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
give notice
Notice
Notice is the legal concept in which a party is made aware of a legal process affecting their rights, obligations or duties. There are several types of notice: public notice , actual notice, constructive notice, and implied notice....
to an owner before selling his property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
to satisfy his unpaid taxes
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
. The Court ruled, 5-3, that after a mailed notice was returned unclaimed, a state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
was required by the Due Process Clause of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to take additional reasonable steps to notify the owner before the sale could proceed. The Court's opinion was delivered by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John G. Roberts, his fourth majority opinion after his confirmation to the Court in 2005 and his first to provoke any dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
s.
The Court had last addressed the issue of notice in Dusenbery v. United States, 534 U.S. 161 (2002), which held that the government need only take steps reasonably calculated to provide notice even if actual notice
Actual notice
Actual notice is a law term, used most frequently in civil procedure. It is notice delivered in such a way as to give legally sufficient assurance that actual knowledge of the matter has been conveyed to the recipient...
is not achieved. The four justices who dissented in Dusenbery now formed the majority with Roberts in Jones v. Flowers, distinguishing the prior case on the basis that the government in Dusenbery did not know that its method of notice had failed before the taking occurred. Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, in dissent, believed the Court was instead undermining Dusenbery, which he argued implicitly dictated a result contrary to the majority's decision.
Tax delinquency and sale
In 1967, Gary Jones purchased a house in Little Rock, ArkansasLittle Rock, Arkansas
Little Rock is the capital and the largest city of the U.S. state of Arkansas. The Metropolitan Statistical Area had a population of 699,757 people in the 2010 census...
, in which he lived with his wife until they separated
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
in 1993. Jones then moved into an apartment in Little Rock, and his wife continued to live in the house. Jones paid his mortgage
Mortgage loan
A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...
each month for 30 years, and the mortgage company paid Jones' property tax
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
es. However, after Jones paid off his mortgage in 1997, his wife failed to pay the property taxes, and the property was certified as delinquent.
In April 2000, Mark Wilcox, the Arkansas
Arkansas
Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
Commissioner of State Lands, attempted to notify Jones of his tax delinquency, and his right to redeem
Right of redemption
The right of redemption, in the law of real property, is the right of a debtor whose real property has been foreclosed upon and sold to reclaim that property if they are able to come up with the money to repay the amount of the debt. Most U.S. states have a statutory provision that allows such a...
the property, by mailing a certified letter
Certified Mail
Certified Mail is a type of Special Service mail offered by the United States Postal Service and other postal services that allows the sender proof of mailing, as well as proof of delivery. Certified Mail also provides the sender with a copy of the recipient's signature, which is obtained at the...
to Jones at the house. The packet of information stated that unless Jones redeemed the property, it would be subject to public sale two years later on April 17, 2002. Nobody was home to sign for the letter, and nobody appeared at the post office
Post office
A post office is a facility forming part of a postal system for the posting, receipt, sorting, handling, transmission or delivery of mail.Post offices offer mail-related services such as post office boxes, postage and packaging supplies...
to retrieve the letter within the next 15 days. The post office returned the unopened packet to the Commissioner marked "unclaimed."
Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in the Arkansas Democrat-Gazette
Arkansas Democrat-Gazette
The Arkansas Democrat-Gazette is the newspaper of record in the U.S. state of Arkansas, printed in Little Rock with a northwest edition published in Lowell...
. No bids were submitted, which permitted the State to negotiate a private sale of the property. Several months later, Linda Flowers submitted a purchase offer. The Commissioner mailed another certified letter to Jones at the house, attempting to notify him that his house would be sold to Flowers if he did not pay his taxes. Like the first letter, the second was also returned to the Commissioner marked "unclaimed." Flowers subsequently purchased the house at approximately a quarter of its fair market value
Fair market value
Fair market value is an estimate of the market value of a property, based on what a knowledgeable, willing, and unpressured buyer would probably pay to a knowledgeable, willing, and unpressured seller in the market. An estimate of fair market value may be founded either on precedent or...
. Immediately after the 30-day period for postsale redemption passed, Flowers had an unlawful detainer notice delivered to the property. The notice was served on Jones' daughter, who contacted Jones and notified him of the unpaid taxes and the tax sale.
State court proceedings
Jones filed a lawsuit in Pulaski County Circuit Court against the Commissioner and Flowers, alleging that the Commissioner's failure to provide notice of the tax sale and of Jones' right to redeem resulted in the taking of his property without due processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. The Commissioner and Flowers moved for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
on the ground that the two unclaimed letters sent by the Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers, concluding that the Arkansas tax sale statute, which set forth the notice procedure followed by the Commissioner, complied with constitutional due process requirements.
Jones appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
ed, and the Arkansas Supreme Court
Arkansas Supreme Court
The Arkansas Supreme Court is the highest court in the U.S. state of Arkansas. Since 1925, it has consisted of a Chief Justice and six Associate Justices, and at times Special Justices are called upon in the absence of a regular justice...
affirmed the trial court's judgment. The court noted Supreme Court precedent stating that due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
does not require actual notice
Actual notice
Actual notice is a law term, used most frequently in civil procedure. It is notice delivered in such a way as to give legally sufficient assurance that actual knowledge of the matter has been conveyed to the recipient...
, and that attempting to provide notice by certified mail satisfied due process in the circumstances presented.
The Court's decision
The Supreme Court granted certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to resolve a conflict among the Circuits and state supreme courts concerning whether the Due Process Clause requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered. The United States Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
was granted leave to participate as amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
, and argued in support of the Commissioner's position.
In a five-justice opinion delivered by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John G. Roberts, the Court reversed the Arkansas Supreme Court and ruled that, under the circumstances, the State's sale of Jones' property violated due process. It held that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
filed a dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, arguing that the State's attempts went beyond any requirements the Court's prior precedents had established.
Roberts' majority opinion
The Court wrote that considering the "extraordinary power" the State is exerting against a property owner, "[i]t is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed." Though the method of using certified mail was in itself reasonably calculated to give notice, the knowledge that the State gained when the mail was returned unclaimed obligated it to take additional reasonable steps. However, "[i]n response to the returned form suggesting that Jones had not received notice that he was about to lose his property, the State did—nothing." The Court believed that "someone who actually wanted to alert Jones that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done."Reasonably calculated to give notice
The Due Process Clause of the Fourteenth Amendment to the United States ConstitutionFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
requires a State to provide an owner with notice
Notice
Notice is the legal concept in which a party is made aware of a legal process affecting their rights, obligations or duties. There are several types of notice: public notice , actual notice, constructive notice, and implied notice....
and an opportunity to be heard before it may take his property and sell it for unpaid taxes
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
. The Court had recently ruled in Dusenbery v. United States, 534 U.S. 161 (2002) that the government did not violate due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
by sending notice to the jail where the property owner was imprisoned and allowing a prison official to sign for it, even though the prisoner never actually received the notice. Dusenbery established that due process did not require actual notice
Actual notice
Actual notice is a law term, used most frequently in civil procedure. It is notice delivered in such a way as to give legally sufficient assurance that actual knowledge of the matter has been conveyed to the recipient...
prior to a governmental taking of property, but instead only that the government attempt to give notice by a method "reasonably calculated, under all the circumstances," to inform all interested parties.
Based on Dusenbery as well as earlier cases, the State argued that once it provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing him a certified letter, due process was satisfied. However, the Court pointed out that in each of those prior cases, the government had subsequently heard nothing back indicating that its attempts had failed. In Dusenbery, for example, the government knew that someone at the prison had signed for the letter. The knowledge that notice had failed was instead "a new wrinkle," and the question before the Court was therefore whether that knowledge constituted a circumstance that alters what notice is required. The Court believed that most federal courts of appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
and state supreme courts to have addressed this issue have decided that the government must do something more when it learns its attempt at notice has failed before it can sell real property in a tax sale. Many states also require by statute more than a simple notice by mail to the delinquent owner.
The means by which service of notice is attempted "must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," Whether a particular method is adequate is determined by balancing
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
the "interest of the State" against "the individual interest sought to be protected by the Fourteenth Amendment." In this case, the Court, emphasized, "we evaluate the adequacy of notice prior to the State extinguishing a property owner's interest in a home," which the Court considered "an important and irreversible prospect."
The Court did not believe that someone who actually desired to inform the owner would do nothing further when a certified letter is returned unclaimed, and satirized
Satire
Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement...
the State's position by analogy. "If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman
Mail carrier
A mail carrier, mailman, postal carrier, postman, postwoman , postman/postwoman , letter carrier or postie is an employee of the post office or postal service, who delivers mail and parcel post to residences and businesses...
, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one ‘desirous of actually informing’ the owners would simply shrug his shoulders as the letters disappeared and say ‘I tried.’ Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman."
The Court noted prior cases in which the government had been required to take notice of "unique information about an intended recipient" that it had known prior to its attempt at notice. In Robinson v. Hanrahan, 409 U.S. 38 (1972), the Court had ruled 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), the Court held that notice of foreclosure by mailing, posting, and publication was inadequate when town officials knew that the property owner was incompetent and without a guardian's protection. The Court did not see a distinction between having such knowledge prior to attempting notice and having such knowledge after notice was sent but prior to the actual taking. Just as the government's knowledge in Robinson and Covey that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice, the government's knowledge should similarly be taken into account in assessing the adequacy of notice in this case. Though Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
’ dissent characterized the State's knowledge that its notice was ineffective as "learned long after the fact," the Court pointed out that it had actually received the returned notice within three weeks; under Arkansas law, it had two years before it could proceed with the sale.
Additional reasonable steps
The Court proceeded to analyze whether there were additional reasonable steps that the State could have practicably taken to notify Jones of the tax sale. If there were such options for the State, the newspaper advertisement announcing the sale could not render notice adequate, because notice by publicationPublic notice
Public notice is a notice given to the public regarding certain types of legal proceedings.-By government:Public notices are issued by a government agency or legislative body in certain rulemaking or lawmaking proceeding....
was only permissible when it was not possible or practicable to give more adequate notice. If there were no such options for the State, "it cannot be faulted for doing nothing."
The Court believed that resending the notice by regular mail would have been a reasonable step, given that the return of the certified letter meant either that Jones was not home when the postman called, or that he no longer lived at that home. Regular mail would allow the letter to be left without a signature, and it would have made it possible for the letter to be forwarded to him. The State also could have simply posted a notice on the front door of the home or addressed the mail to "occupant," which are steps that most states require in their tax sale statutes. The Court believed that in either case, the current occupant of the home would be likely to read the notice and attempt to alert the owner, because a change in ownership would directly affect them. The Court observed that Jones had actually first learned of the tax sale after he was alerted by one of the occupants.
Though the Commissioner argued that even those additional steps were burdensome, the Court countered that it had instead undertaken "the burden and expense of purchasing a newspaper advertisement, conducting an auction
Auction
An auction is a process of buying and selling goods or services by offering them up for bid, taking bids, and then selling the item to the highest bidder...
, and then negotiating a private sale of the property." The Court considered the assertion of burden further undermined by the requirement in Arkansas that notice to homestead owners be accomplished by personal service
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
if certified mail is returned, and the fact that Arkansas transfers the cost of notice to the taxpayer or the tax sale purchaser, The Commissioner offered no estimate of how many notice letters are returned, and the Court believed that nothing supported the dissent's assertion that the Commissioner must now physically locate "tens of thousands of properties every year."
The Court also disagreed with the U.S. Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
's argument that requiring further effort when the government learns that notice was unsuccessful would cause the government to favor methods "that do not generate additional information," such as relying entirely on regular mail instead of certified mail. The Court considered this unlikely because the government is always being asked to prove that notice is sent and received, and the documentation that certified mail provides gives the State protection against false claims that notice was never received. The Court noted that this protection "comes at a price — the State also learns when notice has not been received," information that under the circumstances of this case, the State cannot simply ignore.
The Commissioner also argued that further measures were not required because Jones had a legal obligation to keep his address updated, that he was on inquiry notice after failing to receive a tax bill and pay his property taxes, and that he was obliged to ensure that the occupants of his property would alert him if it were in jeopardy. Though acknowledging that Jones should have been more diligent regarding his property, the Court rejected that any of those conditions could amount to a forfeiture of his due process right to receive adequate notice. The method of certified mail furthermore made it impossible for the occupant to notify Jones, because only Jones could have signed for the letter.
The Court clarified that it was not its responsibility to dictate what form of service
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
that the government should adopt, or to attempt to redraft a State's notice statute. Instead, "[t]he State can determine how to proceed in response to our conclusion that notice was inadequate here." The Court considered it sufficient for it to determine "that additional reasonable steps were available for Arkansas to employ before taking Jones' property."
Thomas' dissent
Justice ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
dissented
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, arguing that under Court precedent, the State's notice attempts clearly satisfied due process requirements. He wrote that the title
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
to property should not turn on "wrinkles" (as the Court had characterized the issue in this case) that Thomas believed were caused by Jones' own failure to protect his property. He further added that "[t]he meaning of the Constitution should not turn on the antics of tax evaders
Tax evasion
Tax evasion is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability,...
and scofflaws."
According to Thomas, the Court's inquiry should have ended with the conclusion that the State's chosen method of notice by certified mail was reasonably calculated to inform Jones of proceedings affecting his property interest. He argued that this finding was "reinforced by the well-established presumption that individuals, especially those owning property, act in their own interest." The State was accordingly free to assume that the address it had on record was correct and up-to-date, or that he had left a caretaker at the house who would inform him of the notice. Whether a method is reasonably calculated to give notice is furthermore determined at the time the notice is sent, a principle Thomas believed followed from Court precedent. He argued that the Court had abandoned this by basing its decision on information that was unavailable when notice was sent, and that all of its suggested reasonable methods were "entirely the product of post hoc considerations."
Thomas believed the Court's holding in Dusenbery that actual notice is not required implied that the government is not required to take additional steps when it becomes aware that its attempt at notice has failed. He accordingly characterized the Court's ruling as "little more than a thinly veiled attack on Dusenbery." Thomas stated that the majority's logic would require a State to consider additional means every time a doubt is raised as to whether notice has been achieved, imposing a requirement with "no natural end point" that Thomas thought effectively required "something close to actual notice."
Regarding the Court's "storm drain" hypothetical, Thomas thought it actually raised a more difficult question of "when notice is sent—at the precise moment the Commissioner places the mail in the postal carrier's hand or the split second later when he observes the departing carrier drop the mail down the storm drain. That more difficult question is not before us in this case because Arkansas learned long after the fact that its attempts had been unsuccessful."
Thomas wrote of the Court's proposed alternatives that, "aside from being constitutionally unnecessary, [they] are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State." Regular mail lacks the paper trail of certified mail, and Thomas thought it was just as likely that mail addressed to "occupant" would be thrown out as junk mail as opened and read as the Court had speculated. He also stated that the Court had previously concluded that posting notices was "an inherently unreliable method."
Thomas observed that 18,000 parcels of delinquent real estate are certified each year in Arkansas, and that the Court's ruling would accordingly impose a burden on the State of locating thousands of delinquent property owners because of the "inefficiencies caused by delinquent taxpayers." Thomas instead believed that the Arkansas system requiring the property owner to maintain a current address with the state taxing authority was reasonable and sufficient.
Critical reaction
Jones v. Flowers was characterized as "an almost paradigmatic case pitting an individual against the state." It was also said to be the second decision that year in which Roberts had "expressed frustration with a bureaucratic response to a serious concern."The case was perceived as an interesting look into the new Roberts Court, as the new Chief Justice chose a decision for his fourth opinion that was contrary to the position of Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
administration lawyers, Justices Scalia and Thomas, "the court's two best-known conservatives," and Justice Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, who was expected to be the Court's swing vote
Swing vote
Swing vote is a term used to describe a vote that may go to any of a number of candidates in an election, or, in a two-party system, may go to either of the two dominant political parties...
following the retirement of Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
. This was the first majority opinion by Roberts to provoke any dissents.