Sections within this essay:Background
Procedural Due Process
Deprivation of Life
Deprivation of Liberty
Deprivation of Property
Substantive Due Process
Modern Protection of Fundamental Rights
Right to Procreate
Use of Contraceptives
Other Fundamental Rights
American Civil Liberties Union (ACLU)
Human Rights Watch
United States Department of Justice, Civil Rights Division
Under both the Fifth and Fourteenth Amendments to the U.S. Constitution, neither the federal government nor state governments may deprive any person "of life, liberty, or property without due process of law." A similar due process provision was found in the Magna Charta, as well as early state constitutions. Chief Justice William Howard Taft explained the purpose behind the clauses in Truax v. Corrigan (1921) as follows: "The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty, and property, which the Congress or the Legislature may not withhold."
Courts have interpreted the due process clauses as providing two distinct limitations on government. First, the clauses provide for procedural due process, which requires the government to follow certain procedures before it deprives a person of life, liberty, or property. Cases that address procedural due process usually focus on the type of notice that is required of the government or the type of hearing that must be held when the government takes a particular action. Second, the clauses establish substantive due process, under which courts determine whether the government has sufficient justification for its actions. Because courts use substantive due process to protect certain fundamental rights of U.S. citizens, issues related to substantive due process have been the subject of extensive debate.
Procedural due process focuses primarily on a person's right to be heard, rather than a person's right to prevail in a dispute. Courts usually consider two broad questions in cases involving procedural due process. First, courts consider whether the government's action involves an interest in life, liberty, or property. Second, courts consider whether the procedures that the government has employed assure that a person receives fair treatment.
The term "life" in the due process clauses is not often the subject of dispute. Even where the government deprives a person of life (e.g., through enforcement of the death penalty), the government seldom does so without following proper procedures. Where the government has allegedly taken a life in an impermissible manner, challenges to the action are usually based on another constitutional provision. For instance, challenges to the death penalty have typically been based on the Eighth Amendment's proscription against cruel and unusual punishment. Similarly, arguments related to whether life begins at conception or birth, especially in abortion cases, focus on the liberty interests of the mother rather than the definition of "life" in the due process clauses.
The U.S. Supreme Court has sought on a few occasions to clarify the meaning of the term "liberty," though the term has never had a precise definition. In Meyer v. Nebraska (1923), the Court stated that liberty "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness of free men." This statement has been quoted by several subsequent Supreme Court cases.
Liberty interests are most clearly involved when the government's action results in physical restraint, especially in cases involving prisoners. In the examples below, the Supreme Court determined that the government was required to provide due process because of the deprivation of liberty interests:
- Revocation of parole (Morrissey v. Brewer )
- Revocation of probation (Gagnon v. Scarpelli )
- Revocation of "good time credits" awarded to prisoners under state law (Wolff v. McDonnell )
- Involuntary civil commitment to a mental institution (Addington v. Texas )
- Transfer of inmates to a strict ("supermax") prison facility (Wilkinson v. Austin )
- Transfer of a prisoner to a mental hospital (Vitek v. Jones )
- Involuntary administration of antipsychotic medications (Washington v. Harper )
By comparison, the Court has refused to recognize other forms of liberty interests related to prisoners, including the following examples:
- Remaining in a minimum security prison, as opposed to a maximum security prison (Meachum v. Fano )
- A review of a prisoner's request to commute his life sentence (Connecticut Board of Pardons v. Dumschat )
- Visitation, including visits from family members (Kentucky Department of Corrections v. Thompson )
- Rescission of discretionary parole prior to a prisoner's release (Jago v. Van Curen )
In addition to restrictions on physical freedom, liberty interests include all of the rights that are granted to the people either expressly in the Constitution, such as freedom of speech or freedom from unreasonable searches and seizures. Liberty also includes rights that are implied from the Constitution by the courts, such as the fundamental right for parents to raise their children.
The Constitution clearly requires that the government must provide due process before it deprives a person of real or personal property. The issue that is most often in dispute in this context is whether a person has a property interest in a government benefit. The Supreme Court, in Roth v. Board of Regents (1970), noted that, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim or entitlement to it." Hence, the key to whether a person has a property interest in a benefit is whether that person is entitled to the benefit.
In order to determine whether a person is entitled to a benefit, courts generally consider the terms under which the government has offered the benefit. If a government employee has a reasonable expecta-tion that he or she will continue to receive a benefit, then the person may successfully assert that he or she has a recognized property interest in the benefit. For instance, a public employee who holds a position that is terminable at the will of either party does not generally have a property interest in that position. Bishop v. Wood (1976). However, where a state statute allows public servants to retain the positions in the absence of "misfeasance, malfeasance, or nonfeasance in office," the person could have a property interest in continued employment. Cleveland Board of Education v. Loudermill (1985). The Supreme Court has recognized property interests protected by the due process clauses in the following instances:
- A state statute allowing the government to aid in the collection of debts through wage garnishment without notice or a hearing violated due process rights of the person whose wages were garnished (Sniadach v. Family Finance Corp. of Bay View )
- Welfare recipients were entitled to notice and a hearing prior to the termination of public assistance payments (Goldberg v. Kelly )
- Suspension of a driver's license by a state department of public safety required notice and a hearing (Bell v. Burson )
- A teacher who was employed by a junior college under a series of one-year contracts could prove entitlement to continued employment based on a provision of an employee handbook (Perry v. Sinderman )
In some instances, the government may have deprived a person of life, liberty, or property without following any form of procedure. Other instances, where a governmental unit has followed some sort of a procedure, present more difficult questions for courts, which must consider whether the procedures were adequate for the protection of the rights involved. In this context, due process is concerned only that the governmental actor followed a fair decision-making process and not that the government reached a fair result.
Due process basically requires that a person who is deprived of a recognized right must be given some sort of notice and an opportunity for a hearing on the government's action. Where individual rights are affected by legislation, the publication of a statute is sufficient to provide notice to all individuals. On the other hand, an action by an agency or a court requires notice that will ensure that interested parties will, in fact, become aware of a proposed action.
At a minimum, a person who will be deprived of a right is entitled to a fair decision-making process by an impartial decision-maker. However, rather than establish a single rule that all governmental bodies must follow in terms of the specific procedures that are employed during a hearing, courts instead balance various interests when determining what procedures that a governmental entity must use. The Supreme Court in Mathews v. Eldridge (1976) explained these factors as follows: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
The Supreme Court has continued to adhere to the balancing test announced in Mathews, although this test does not require the government to provide a formal adversarial proceeding when it deprives a person of a right. In Wilkinson v. Austin (2005), the U.S. Supreme Court reviewed a case where prisoners were transferred from a state penitentiary to a socalled "supermax" facility, which was reserved for the most dangerous criminals. The state adopted an informal, nonadversarial procedure for determining which inmates would be transferred. Inmates received notice of their transfer as well as the factual basis for their transfer. Moreover, inmates had an opportunity to rebut accusations, and multiple levels of review were available for an appeal. After stating that the Mathews test still constituted good law, the Court determined that these procedures were adequate to provide due process.
The Fourteenth Amendment, ratified by the states in 1866, included among is provisions the Privileges and Immunities Clause. This clause provides that no state "shall abridge the privileges and immunities of the citizens of the United States." Many commentators have long argued that this provision, rather than the Due Process Clause of the Fourteenth Amend-ment, should protect substantive rights of citizens. The Supreme Court, however, limited the application of the Privileges and Immunities Clause in the Slaughterhouse Cases (1872) by stating that the amendment did not create any new federal rights. The Court has rarely applied the Privileges and Immunities Clause since that time.
Although some cases during the nineteenth century suggested that the due process should protect substantive rights, the Supreme Court generally avoided this question. In Lochner v. New York (1905), however, the Court reversed its position, ruling that a state statute limiting the number of hours that employees could work violated due process because it interfered with the workers' right to contract. After this decision, the Court engaged in a practice where it effectively substituted its own judgment for the judgment of a legislative body.
Several pieces of legislation enacted under President Franklin Roosevelt's New Deal program were challenged on due process grounds. The Court at that time continued to strike down legislation based on the due process clause under Lochner, and the economic beliefs of the justices conflicted with the goals of Roosevelt's legislation. In a direct clash between two of the branches of government, Roosevelt threatened to add Supreme Court justices who were more likely to uphold the statutes. Although Congress later rejected the court-packing plan, the Court nevertheless reversed its position. By 1937, the Court no longer subjected legislation to the same type of scrutiny that it did under Lochner.
Beginning with United States v. Carolene Products Co. (1938), the Court significantly revised its approach to the review of legislation. The Court presumes that legislation is constitutional and places the burden on the person challenging the law to prove that the law is not rationally related to a permissible government interest. Under this rational basis test, the Court strikes down very few pieces of legislation.
The Court's review of legislation changes when the law affects a fundamental constitutional right. A fundamental right may arise explicitly from the Constitution or may be implied from the Constitution by the courts. The application of the due process clauses in the context of the protection of fundamental rights overlaps with the application of the Equal Protection Clause. If a law classifies certain people based on their exercise of a fundamental right, then the Court applies the Equal Protection Clause to the analysis. However, if the law restricts the fundamental rights of all persons, the Court engages in a due process analysis.
Under either the Equal Protection Clause or the due process clauses, where a law infringes upon a fundamental right, the Court subjects the law to close scrutiny. Unlike laws that are reviewed under the rational basis test, the Court presumes that a law that restricts a fundamental right is unconstitutional, and the state may only prove that the law is constitutional by showing that the law is "narrowly tailored" to further a compelling governmental interest. This standard is very difficult for the government to overcome.
One of the more controversial aspects of both due process and equal protection jurisprudence is the recognition of the fundamental rights that the Court has determined are implied in the Constitution. Few tend to question that citizens of the United States have a fundamental right to freedom of religion, since the Constitution explicitly provides this right. However, it is less clear that citizens have a general right to privacy since the Constitution says nothing about these types of rights. Nevertheless, the Court has recognized a number of these implied rights, which are often identified more generally as privacy rights.
The Court has long recognized that the right to procreate is a fundamental right protected by the Constitution. In Skinner v. Oklahoma (1942), the Court invalidated a state statute that provided for the mandatory sterilization of certain habitual criminals. Noting that the right to procreate was a "basic right of man," the Court strictly limited the power of a state to impose involuntary sterilization.
Much of the modern focus on the protection of privacy rights began with the case of Griswold v. Connecticut (1965), which involved a challenge of a criminal law that proscribed the use of contraceptives, even in private. According to the lead opinion written by Justice William Douglas, even though the Constitution was silent about the right to privacy, the Constitution nevertheless contained a "penumbra" of rights within the Bill of Rights that included the right to privacy. Since the criminal law in this case infringed upon the privacy rights of those who wished to use contraceptives, the Court ruled that it violated the Due Process Clause of the Fourteenth Amendment. Although other justices disagreed with the un-derlying rationale for recognizing privacy rights, the decision led to the recognition other fundamental rights in later cases.
Probably the most debated right that the Court has recognized relates to whether a woman has a right to terminate her pregnancy. In Roe v. Wade (1973), the Court found that a woman's right to make this decision was indeed a fundamental right protected by the Constitution. Competing with this right of the woman is the state's interest in maternal health. The Court in Roe established the time during which the state could not prevent a woman from having an abortion (i.e., during the first trimester of the pregnancy) and the time during which the state could place restrictions on abortions (i.e., after the first trimester).
Critics have attacked Roe since the decision was handed down, often on the grounds that it represents judicial activism at its worst. On the other hand, supporters have defended the decision with equal vigor on the basis that it represents one of the more important rights of women. Subsequent cases, especially Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), have diluted Roe to a large extent, even though the basic holding of Roe has remained intact.
Most states outlawed homosexual acts for many years through the application of sodomy laws. The repeal of these sodomy laws as they applied to homosexual acts became a focal point for gay and lesbian rights groups, much like the right to an abortion has been a focal point for women's rights groups. In the case of Bowers v. Hardwick (1986), however, the Court explicitly refused to recognize that the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."
Critics argued that the Court misconstrued the basic rights at issue in Bowers, saying that the case was really about the right to be left alone rather than the right to engage in homosexual conduct (the case arose after police arrested a man engaged in a sex act in his own house). Seventeen years after the decision in Bowers, the Court reconsidered its position, and in Lawrence v. Texas (2003), it declared that sodomy laws were indeed unconstitutional. According to Justice Anthony Kennedy, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
The Court in Loving v. Virginia (1967), recognizing a fundamental right to marriage, invalidated a state statute that forbid interracial marriage. Chief Justice Earl Warren wrote that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
In addition to marital rights, the Court has recognized several other family-related rights, including the rights of parents to raise their children as they see fit. In Santosky v. Kramer (1982), the Court noted that "freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Further, the Court recognized a "fundamental liberty interest of natural parents in the care, custody, and management of their child."
Custody of one's children is considered to be a fundamental right, though the Court in several cases has refused to protect the rights of unmarried fathers. Parents also have a fundamental right to keep their family together, as well as to control the upbringing of their children. This includes the rights of parents to raise their children without interference from others, including grandparents. In Troxel v. Granville (2000), the Court in a plurality opinion struck down a Washington statute that allowed any person to petition a court for visitation rights if visitation was in the best interests of the child. Under this case, even though a state statute may still allow courts to grant visitation right to grandparents (and perhaps others), such a law may not do so in a manner than infringes upon a parent's right to make decisions regarding the "care, custody, and control" of his or her children.
In addition to privacy rights, the Supreme Court has recognized several other fundamental rights. Among these rights are the following:
- Freedom of association
- Right to vote and participate in the electoral process
- Right to interstate travel
- Right to fairness in the criminal process
Constitutional Law in a Nutshell, 5th Edition. Barron, Jerome A. and C. Thomas Dienes, Thomson/West, 2003.
Constitutional Law: Principles and Policies, 2d Edition. Chemerinsky, Erwin, Aspen Publishers, 2002.
Constitutional Law, 7th Edition. Nowak, John E. and Ronald D. Rotunda, Thomson/West, 2004.
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The term due process refers to the guaranteed rights that ensure that an individual cannot be deprived of “life, liberty, or property, without due process of law.” This provision, as it applies to the U.S. federal government, is found in the Fifth Amendment to the U.S. Constitution. It is also found in the Fourteenth Amendment, where it constrains the actions of the states. The notion of due process arises from the premise that law should be fair, predictable, and transparent. Perhaps more importantly, a guarantee of due process ensures that whenever the sovereign or government interacts with an individual, it is bound by the law from both a substantive and procedural perspective.
The Bill of Rights (the first ten amendments to the U.S. Constitution) initially only acted as a constraint on the actions of the federal or national government. Once the Fourteenth Amendment was enacted after the Civil War, the U.S. Supreme Court utilized the due process clause to incrementally apply those constraints to the state governments. Through the process known as “incorporation,” the due process clause served as the conduit to apply the Bill of Rights to the relationship between individuals and the state governments.
The Court did not apply all the governmental restrictions of the Bill of Rights at once, however. Rather, over time, the Court incorporated more discreet rights using a progressively broader configuration of the due process clause. For instance, in Mapp v. Ohio (1961), the Court ruled that the Fourth Amendment prohibited states from introducing illegally obtained evidence during criminal prosecutions. This “exclusionary rule”—which holds that improperly obtained evidence must be excluded from the prosecution’s case—supported and gave weight to a line of previous cases that prohibited unreasonable searches and dictated the need for “probable cause” before a search warrant could be issued. The Fifth Amendment prohibitions on double jeopardy or compelled self-incriminating testimony were also held to apply to state actions. In Miranda v. Arizona (1966), the Court determined that the right to an attorney contained in the Sixth Amendment and the right against self-incrimination contained in the Fifth Amendment were so important that the police must affirmatively advise suspects of those rights before questioning a detained suspect.
The notion of due process is not limited by the text of the Bill of Rights. Although the Court has incorporated many specific provisions of the rights contained in the Constitution, it has embraced a broader notion of due process that suggests an independent constraint on governmental procedures that are not particularly derived from constitutional text apart from the due process clauses. For instance, in Rochin v. California (1952) the Court held that shocking behavior can violate procedural due process even if no specific text of the Constitution is at issue (in this case, the police forcibly pumped out a suspect’s stomach to recover drugs he had swallowed upon their entry). Fundamental notions of decency and fair process are thus intrinsic aspects of due process.
Although most questions about due process are concerned with procedural due process—the process or procedure at issue—on occasion the Court has considered substantive aspects of due process. In Skinner v. Oklahoma (1942), the Court used a substantive due process analysis as the basis for overturning a criminal statute in Oklahoma that provided for the sterilization of some three-time felony offenders but not others. There is a debate as to whether the right to privacy found in the emanations and penumbras of the Bill of Rights, as found in Griswold v. Connecticut (1965) and Roe v. Wade (1973) is grounded in substantive due process. In Griswold the Court found that a right to privacy prohibited Connecticut from outlawing birth control for married couples, and in Roe the Court recognized the right of women to obtain an abortion before the third trimester of pregnancy.
The foundational expectation of due process means that government bodies, agencies, and actors must provide some set review before depriving an individual of life, liberty, or property, broadly defined. The required process may take the form of administrative hearings, appellate procedures, or some other forum to hear and oppose the prospective governmental action. Since the time of the Magna Carta in England, due process has meant a fundamental demand that the government follow the appropriate law. The concept, as well as the fundamental transparency and fairness it implies, holds in both international legal regimes and any constitutionally grounded government.
SEE ALSO Civil Liberties; Civil Rights; Constitution, U.S.; Supreme Court, U.S.
Hensley, Thomas R., Christopher E. Smith, and Joyce A. Baugh. 1997. The Changing Supreme Court, Constitutional Rights and Liberties. Minneapolis, MN: West Publishing.
Orth, John V. 2003. Due Process of Law: A Brief History. Lawrence: University Press of Kansas.
Charles Anthony Smith
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.
Brown v. City of Michigan City, Indiana
The Fourteenth Amendment's Due Process Clause applies to state and local governments in the same way the Fifth Amendment's Due Process Clause applies to the federal government. The clause prohibits state governments from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. Procedural due process is concerned with the methods used by the legal system to carry out its work. In cases where an individual has claimed a violation of due process rights, the court must determine whether a citizen is being deprived of "life, liberty, or property" and what procedural protections are due that individual. In addition, the U.S. Supreme Court has recognized the existence of substantive due process, which evaluates the importance of the right or the severity of the infringement. The Seventh Circuit Court of Appeals dealt with both types of due process in Brown v. City of Michigan City, Indiana, 462 F.3d 720(7th Cir.2006), ruling that a city could constitutionally deny a convicted sex offender access to city parks. The appeals court concluded that the ban did not implicate a constitutionally protected liberty interest.
Robert Brown, a resident of Michigan City, Indiana, frequented Washington Park, a large park on the shores of Lake Michigan, on a regular basis. Brown entered the park free of charge with a resident pass issued by the city. Brown began visiting the park on a daily basis in 1988 with his wife. After her death that year he continued his daily visits for 14 years. He would park his R.V. near the lake, drink coffee, smoke cigarettes, and watch people at the beach, sometimes with binoculars. Brown usually remained in his van. In early July 2002 a park official received a phone call from the recreation director in LaPorte, Indiana concerning Brown's presence and behavior at a beach in that city. Brown had been observed watching beach patrons through his binoculars. The LaPorte police investigated and discovered that Brown had been convicted of one count of child molestation in 1995 and had spent three years in prison. He had been placed on probation and had completed a counseling program after his release. Armed with this information, Michigan City park employees watched and logged Brown's visits to the park. They alleged that he had watched children at a day camp within the park and sometimes entered the park twice daily. In late July Brown was approached in the park by police officers and a city attorney. The attorney confiscated Brown's park pass and was informed he was no longer allowed in the park. If he returned he would be charged with trespass. The city parks and recreation board met several days later and passed a resolution deny access to city parks to Brown and to any other person convicted of child molestation. The board rescinded the resolution in late August after Brown commenced a federal civil rights lawsuit and sought to make it a class action. It removed the clause dealing with sex offenders in general and limited its action to the prohibition of Brown from entering city parks. Brown then dropped his request for a class action.
In his lawsuit Brown alleged that the city had denied him procedural and substantive due process. He claimed he was denied procedural due process because the park board conducted its meetings in the park office inside Washington Park. He had been warned he would be charged with trespass if he entered the park, making attendance at the hearing risky for him. Though the city told a friend of his that he would not be charged if he attended, the city refused to put this promise in writing. Brown also a contended that the right to enter public spaces like public parks is a fundamental and basic right and that the ban was arbitrary and irrational. The federal district court rejected Brown's claims and granted summary judgment to the city, ending the litigation. The court ruled that Brown did not have a protected property interest in being permitted to enter the city parks, which negated his procedural due process claim. The court also rejected his liberty interest claim, finding that Brown's reputation may have been damaged by being labeled a threat to children but he could not show the "alteration of a legal status." To meet this burden he would need to show an injury in addition to his damaged reputation, such as finding it impossible to find employment in his chosen field. As to the substantive due process claim, Brown had failed show that access to public parks was a fundamental right. The city's ban was rationally related to its compelling interest in protecting children in its parks.
Brown's appeal to the Seventh Circuit Court of Appeals was unsuccessful. The appeals court agreed with the lower court that Brown had failed to point to a state law or other independent source that guaranteed him access to the park. More importantly, the state had delegated to the city parks and recreation board the authority to exercise supervision over the parks and to establish park rules. Therefore, the board had the discretion to decide "whether and under what conditions members of the public can access the City's parks." His reputation may have been damaged but he could not point to an actual injury related to this ban. Therefore, he could not claim a due process right violation.
As to Brown's substantive due process claim the appeals court was similarly dismissive. The court noted that the Supreme Court has recognized a narrow category of "fundamental" rights. They included the rights to marry, to have children, to direct the education and upbringing of children, to marital privacy, to use contraception, to bodily integrity, and to abortion. The "right to enter a public park is not among this list" and the appeals court refused to expand the list. Though Brown's "right" to enter a park for innocent purposes was "certainly important," it was not fundamental. The court agreed with the lower court that the ban was rationally related to a legitimate government purposed: the protection of children. Brown was "not just another patron of the public parks" but a convicted child molester whose "frequency of attendance and atypical behavior while in the park" justified the concerns of park officials.
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."