What Does Due Process Require When a Notice of Tax Sale is Returned?

Jones v. Flowers

While Jones consistently paid his mortgage for 30 years the mortgage company paid the property taxes on his house. Once Jones had paid off the mortgage the property taxes went unpaid and the Government eventually decided to sell the delinquent property. The Government, in an attempt to comply with its Due Process requirement that it provide “notice and opportunity for hearing appropriate to the nature of the case” (a requirement that varies with the circumstances) mailed, by certified mail, a notice to the house which was returned as unrecieved. It also sent another notice that it would sell the property, which had been advertised in the paper. Jones finally discovered that his property had been sold when the new owner had him served with an unlawful detainer notice immediately following the 3o day period for post-sale redemption. This case addresses the question of the extent to which the Government must go in its attempts to contact the owner; specifically, whether the Government's notice being returned before the tax sale is a "circumstance or condition" that varies the notice required.

In order to fulfill the Due Process requirement the owner need not actually receive notice. Rather, taking all circumstances into account, notice need only be reasonably calculated to appraise the owner of the situation. The State argues that because Jones was responsible for the property the Governments mailing to that address satisfied the requirement. The Court had previously held that if notice is due the Government must employ the means of someone actually desirous of notifying the owner and that the determination must balance the interest of the State and the individual. The Court has also held that the Due Process requirement was not fulfilled when the State mailed notices to the home of someone it knew to be incarcerated, or when it posted and mailed notices regarding the property of a person it knew to be incompetent and without a guardian's protection. The State argues that the constitutionality of a notice procedure applies ex ante rather than post hoc (before the procedure, not after), but the Court asserts that when part of its notice procedure includes being informed as to the effectiveness of that procedure (as in the case of certified mail) further requirements do not contravene the principle, especially since in this case the notice was returned with almost two years left before the property could be sold.

The State's 3 remaining arguments are that (1) Jones himself provided the legal address, and had a duty to keep it updated; (2) Second, “after failing to receive a property tax bill and pay property taxes, a property holder is on inquiry-notice that his property is subject to governmental taking;" and (3) Jones was obligated to ensure that those in whose hands he left the property would alert him if it were in jeopardy. The Court holds that neither of the first two arguments change the State's obligation since Jones' failure to maintain his address did not forfeit any right he may have had, and since knowledge of a property's delinquency is not equal to knowledge of its pending tax sale. As for the third argument, the Court notes that the occupant is not the agent of the owner in all respects, and that the occupant cannot be expected to know what the mailing concerns. Finally, the Court addresses the question as to whether there were any other reasonable steps the State could have taken (if there were not, of course, the State's procedure would be considered adequate). The Court suggests that resending the notice by regular mail, so that no signature would be required, would have been reasonable. Since this fact is not changed by the publication of the tax sale, that publication did not satisfy the Due Process requirement either.

The Court also addresses the State's policy arguments. The additional requirements would not overly burden the state since it already engages in such practices under alternate circumstances, and because the cost is transferred to the estate. This rule would not motivate States to abandon certified mail (and other success-reporting methods) since they must often prove that notice was delivered. The Court does not, but I will, note the irony of the argument that public policy would be worse off if States did not use success-reporting delivery procedures because they refused to respond to reports of failure.

Justice Thomas, for the dissent, argues that because Jones provided his mailing address the State had good reason to believe that the notice would reach him, and exceeded its requirement when it published notice of the tax sale. The dissent endorses the distinction between ex ante and post hoc requirements as well as the policy arguments, and argues that because Due Process does not require actual notice (only an attempt) once the Government learns of the failure of its delivery the implication is that it need not take any additional steps. Justice Thomas also suggests that if the State had only used regular mail Jones would have argued that it was required to use certified mail, and that the Court's suggestion that the State re-send the notice to "occupant" diverges from the requirement that the State reasonably attempt to notify the owner.