Due Process

A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

Jones v. Flowers

A fundamental principle of due process is that notice be given to a person when legal action is initiated against that person. Notice may be given by personally serving a copy of the legal documents to the person or by mailing the documents. If the person cannot be served in person or by mail, a legal notice may be published in a local newspaper. In the case of tax forfeiture proceedings by state and local governments, questions have arisen over how far the government must go to notify a property owner who stands to lose the property for failing to pay taxes. The Supreme Court, in Jones v. Flowers, ___U.S.___, 126 S.Ct. 1708, ___L.Ed.2d ___ (2006), ruled that a state must do more than serve a tax forfeiture sale notice by certified mail when the certified letters are returned as unclaimed. The Court held that a state must take "additional reasonable steps" to provide notice before taking the owner's property.

Gary Jones purchased a house in Little Rock, Arkansas in 1967, living there with his wife until they separated in 1993. He moved into an apartment in Little Rock but kept paying the mortgage on the house until it was paid off in 1997. Local property tax payments were included in the monthly mortgage payments. When the mortgage ended, Jones did not pay the property taxes. In April 2000 his tax delinquency triggered a letter from the Arkansas Commissioner of State Lands, informing Jones that he needed to redeem his property by paying back taxes and penalties. The letter, which was sent by certified mail, notified Jones that failure to redeem the property by April 2002 would lead to the public sale of his house. The certified letter did not reach Jones, as there was no one home to sign for the letter and no one appeared at the post office to claim it within 15 days. The letter was returned to the commissioner's office and marked "unclaimed." In April 2002 the commissioner published a notice of public sale in the Little Rock newspaper on the Jones property. Linda Flowers submitted the winning offer on the property, offering $21,000 for a house with a fair market value of $80,000. The commissioner sent another letter to Jones by certified mail, informing him that the house would be sold to Flowers if he did not pay his taxes. As with the prior letter, this notice was returned as unclaimed. The commissioner then closed the deal with Flowers, who served an eviction notice on the property. This notice was personally served on Jones' daughter, who contacted her father and told him of the tax sale.

Jones filed a lawsuit in state court against the commissioner and Flowers, contending that he had not been provided notice of the tax sale and his right to redeem. He argued that the lack of notice resulted in the taking of his property without due process of law. The defendants replied that the two unclaimed certified letters were constitutionally adequate attempts at notice and that the lawsuit should be dismissed. The trial court agreed to the dismissal, finding that the state tax forfeiture statute's notice provisions met due process requirements. The Arkansas Supreme Court upheld the trial court, citing U.S. Supreme Court precedent that due process does not require actual notice; the attempt to notify Jones by certified mail satisfied process. The U.S. Supreme Court agreed to hear Jones' appeal because state supreme courts and federal circuit courts of appeals were divided over whether the government must take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered.

The Court, in a 5-3 decision (newly confirmed Justice Samuel Alito did not participate in the consideration of the case), reversed the Arkansas Supreme Court. Chief Justice John Roberts, writing for the majority, held that when certified letters containing notice of a tax sale are returned, the government 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." Roberts acknowledged that a property owner does not need to receive actual notice before the government can take his property and that the property owner was obligated under Arkansas law to keeping his mailing address up to date. Arkansas also pointed to the use of certified mail as a way to insure that a property owner receives notification and that such notice is documented through postal records. Roberts noted that this case contained a new "wrinkle:" the state became aware before the tax sale that its attempts at notifying Jones had failed. Under these "circumstances and conditions" the Court needed to determine if due process had been met.

Chief Justice Roberts concluded that in these circumstances the government needed to do something more before selling property for back taxes. In this case the Court determined that Arkansas could have taken several reasonable steps. Once the certified letter was returned, the commissioner should have sent out the notice using regular mail, so that a signature was not required. If Jones had moved, Roberts believed that the new occupant might have written the forwarding address on the envelope or contacted Jones directly. Other reasonable steps included posting the notice on Jones' apartment door or addressing the mail to "occupant." The Chief Justice suggested that "[o]ccupants who might disregard a certified mail slip not addressed to them are less likely to ignore posted notice, and a letter addressed to them might be opened and read." However, Roberts rejected Jones' contention that the state should have searched for his new address in the Little Rock phonebook. Such an "open-ended search" would impose burdens on the state "significantly greater than the several relatively easy options outlined above."

Justice Clarence Thomas, in a dissenting opinion joined by Justices Antonin Scalia and Anthony Kennedy, argued that Arkansas had met its due process requirements. The reasonableness of government notice requirements must be made assessed at the time the state sends the notice, not afterwards. As to the Court's suggested additional reasonable steps, Justice Thomas characterized them as "burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State."