The Court will hear oral arguments today in Jones v. Flowers, No. 04-147. At issue is whether due process requires the government to take additional measures to locate the owner of a property before taking the property when a mailed notice of tax sale or property forfeiture is returned undelivered.

Petitioner Gary Kent Jones purchased a house in Little Rock, Arkansas where he lived with his wife until their separation. Following their separation, Mrs. Jones continued to live in the house. Despite requirements under the tax sale statute, Mr. Jones did not notify the State of his change of address. For a period of four years, Mr. Jones failed to pay his property taxes. The State mailed a certified letter to the house addressed to Mr. Jones attempting to notify him of the delinquency and his right to redeem the property by paying his back taxes. The notice stated that unless redeemed, the property would be sold in two years. The letter was returned to the State marked “unclaimed.” After respondent Linda Flowers submitted a purchase offer, the State again attempted to notify Mr. Jones by certified mail; the letter was again returned “unclaimed”. Mrs. Flowers then purchased the house. Shortly thereafter an unlawful detainer notice was served on the house and it was at this point that Mr. Jones first became aware of the sale.

Mr. Jones filed suit alleging that the sale was invalid because of the lack of adequate notice, and Mrs. Flowers filed a counterclaim. The state trial court granted summary judgment in favor of Mrs. Flowers and the State. It held that Section 26-37-301 of the Arkansas Code, which establishes a statutory-notice regime in the tax sale statute, complies with due process requirements. On appeal, the Arkansas Supreme Court affirmed.

Michael T. Kirkpatrick of Public Citizen Litigation Group will argue on behalf of the petitioner. Carter G. Phillips of Sidley Austin Brown & Wood will argue for the respondent, the Arkansas Commissioner of State Lands. Assistant to the Solicitor General James A. Feldman will appear as amicus curiae for the United States supporting respondents.

At issue between the parties is the level of notice required under the due process clause and as set out under the test in Mullane v. Central Hanover Bank & Trust Co., in which the Court held that due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.”

Mr. Jones argues that reasonable notice is to be assessed in each situation in which there is an attempt to provide notice. He argues that because the return of the certified mail made it clear to the State that he had not received notice, the State was required to take further reasonable steps to notify him before taking his property. He further argues that the burden on the State in pursuing alternate means was not unreasonable and was justified in these circumstances given the property interest at stake. He argues that his correct mailing address was readily and inexpensively ascertainable from a variety of sources — including records maintained by the State (such as the telephone directory or voter registration rolls) or through an internet search of online directories.

The State relies principally on the statutory-notice regime established in the tax sale statute, arguing that compliance with the regime satisfies the Mullane test. The State had twice sent certified mail to Mr. Jones and had published notice in a local newspaper. It argues that it was entitled to rely on the current address on record for Mr. Jones in light of his legal obligation to notify the tax collector directly of any change of address. (Mr. Jones replies that a party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional obligation to provide effective notice.) The State argues that Mr. Jones was attempting to reformulate the test, which does not require actual notice, by requiring an unspecified number of independent efforts. Moreover, the State contends, by providing for notice by certified mail, the statutory regime in fact goes beyond the constitutional minimum, which only requires regular mail. In addition, the returned certified mail as “unclaimed” did not actually notify the State that Mr. Jones did not live at that address, but rather only that he had declined to go to the post office to pick up the mail. And the State rejects the suggestion that Mr. Jones’s correct address was easily ascertainable and that further searches did not impose an undue burden as ignoring the tens of thousands of delinquency notices sent annually in this country.

Mrs. Flowers, who purchased the house from the State, argues that Mr. Jones had not properly preserved his argument regarding his obligation to furnish his correct address to the taxing authorities.

Arguing in support of the respondents, the United States argues that the adequacy of notice must be assessed ex ante — that is, from the standpoint of the party giving notice "“ rather than ex post "“ i.e., when the intended recipient comes forward months or years later and explains how they could have been reached. By contrast, the United States contends, Mr. Jones’s argument rests principally on hindsight and not on the knowledge and means contemporaneously available to the State. The statutory regime attempts to provide transfer of ownership of property with reliable finality. In terms of this regime it is essential that the State know what steps it must take to transfer ownership of tax-delinquent property.

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