JONES v. FLOWERS (No. 04-1477) Thomas' Dissent
359 Ark. 443, ___
S. W. 3d ___, reversed and remanded.
If “title to property should not depend on [factual] vagaries,” Dusenberry,
supra, at 171, then certainly it cannot turn on “wrinkle[s],” ante,
at 5, caused by a property owner’s own failure to be a prudent ward of his
interests. The meaning of the Constitution should not turn on the antics of tax
evaders and scofflaws. Nor is the self-created conundrum in which petitioner
finds himself a legitimate ground for imposing additional constitutional
obligations on the State. The State’s attempts to notify petitioner by
certified mail at the address that he provided and, additionally, by publishing
notice in a local newspaper satisfy due process. Accordingly, I would affirm the
judgment of the Arkansas Supreme Court.
Justice Thomas, with whom Justice
Scalia and Justice Kennedy join,
dissenting
SUPREME COURT OF
THE UNITED STATES
GARY KENT JONES, PETITIONER
v.
LINDA K. FLOWERS
et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS
[April 26, 2006]
Justice Thomas, with whom Justice
Scalia and Justice Kennedy join,
dissenting.
When petitioner failed to pay his
property taxes for several consecutive years, respondent Commissioner of State
Lands in Arkansas, using the record address that petitioner provided to the
State, sent petitioner a letter by certified mail, noting his tax delinquency
and explaining that his property would be subject to public sale if the
delinquent taxes and penalties were not paid. After petitioner failed to
respond, the State also published notice of the delinquency and public sale in
an Arkansas newspaper. Soon after respondent Linda K. Flowers submitted a
purchase offer to the State, it sent petitioner a second letter by certified
mail explaining that the sale would proceed if the delinquent taxes and
penalties were not paid.
Petitioner argues that the State
violated his rights under the Due Process Clause of the Fourteenth Amendment
because, in his view, the State failed to take sufficient steps to contact him
before selling his property to Flowers. Petitioner contends that once the State
became aware that he had not claimed the certified mail, it was constitutionally
obligated to employ additional methods to locate him.
Adopting petitioner’s arguments,
the Court holds today 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.” Ante, at 4. The Court concludes that it was practicable for
Arkansas to take additional steps here—namely, notice by regular mail, posting
notice on petitioner’s door, and addressing mail to “occupant.” Ante,
at 13. Because, under this Court’s precedents, the State’s notice methods
clearly satisfy the requirements of the Due Process Clause, I respectfully
dissent.
I
The Fourteenth Amendment prohibits
the States from “depriv[ing] any person of life, liberty, or property, without
due process of law.” This Court has held that a State must provide an
individual with notice and opportunity to be heard before the State may deprive
him of his property. Mullane v. Central Hanover Bank & Trust Co.,
339 U. S. 306, 313 (1950) .
Balancing a State’s interest in efficiently managing its administrative system
and an individual’s interest in adequate notice, this Court has held that a
State must provide “notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action.” Id., at
313–314. As this Court has explained, “when notice is a person’s due … [t]he
means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it.” Id., at 315. “[H]eroic
efforts,” however, are not required. Dusenbery v. United States, 534
U. S. 161, 170 (2002) . To
the contrary, we have expressly rejected “[a] construction of the Due Process
Clause which would place impossible or impractical obstacles in the way [of the
State].” Mullane, supra, at 313–314. Thus, “none of our cases …
has required actual notice”; instead, “we have allowed the Government to
defend the ‘reasonableness and hence the constitutional validity of any chosen
method … on the ground that it is in itself reasonably certain to inform those
affected.’ ” Dusenbery, supra, at 169–170 (quoting Mullane,
supra, at 315).
The methods of notice employed by
Arkansas were reasonably calculated to inform petitioner of proceedings
affecting his property interest and thus satisfy the requirements of the Due
Process Clause. The State mailed a notice by certified letter to the address
provided by petitioner. The certified letter was returned to the State marked
“unclaimed” after three attempts to deliver it. The State then published a
notice of public sale containing redemption information in the Arkansas Democrat
Gazette newspaper. After Flowers submitted a purchase offer, the State sent yet
another certified letter to petitioner at his record address. That letter, too,
was returned to the State marked “unclaimed” after three delivery attempts.1
Arkansas’ attempts to contact
petitioner by certified mail at his “record address,” without more, satisfy
due process. Dusenbery, supra, at 169. See also Mullane, supra, at
318; Tulsa Professional Collection Services, Inc. v. Pope, 485
U. S. 478, 490 (1988) (“We
have repeatedly recognized that mail service is an inexpensive and efficient
mechanism that is reasonably calculated to provide actual notice”); Mennonite
Bd. of Missions v. Adams, 462
U. S. 791, 792, 798
(1983) (holding that “notice mailed to [the affected party’s] last
known available address” is sufficient where a State seeks to sell “real
property on which payments of property taxes have been delinquent” (emphasis
added)). Because the notices were sent to the address provided by petitioner
himself, the State had an especially sound basis for determining that notice
would reach him. Moreover, Arkansas exceeded the constitutional minimum by
additionally publishing notice in a local newspaper.2
See Mullane, supra, at 318. Due process requires nothing
more—and certainly not here, where petitioner had a statutory duty to pay his
taxes and to report any change of address to the state taxing authority. See
Ark. Code Ann. §26–35–705 (1997).
My conclusion that Arkansas’
notice methods satisfy due process is reinforced by the well-established
presumption that individuals, especially those owning property, act in their own
interest. Recognizing that “ ‘[i]t is the part of common prudence for
all those who have any interest in [a thing], to guard that interest by persons
who are in a situation to protect it,’ ” Mullane, supra,
at 316 (quoting The Mary, 9 Cranch 126, 144(1815)), this Court has
concluded that “[t]he ways of an owner with tangible property are such that he
usually arranges means to learn of any direct attack upon his possessory or
proprietary rights.” Mullane, 339 U. S., at 316. Consistent with
this observation, Arkansas was free to “indulge the assumption” that
petitioner had either provided the State taxing authority with a correct and
up-to-date mailing address—as required by state law—“or that he … left
some caretaker under a duty to let him know that [his property was] being
jeopardized.”3 Ibid.
The Court does not conclude that certified mail is
inherently insufficient as a means of notice, but rather that “the
government’s knowledge that notice pursuant to the normal procedure was
ineffective triggered an obligation on the government’s part to take
additional steps to effect notice.” Ante, at 9. I disagree.
First, whether a method of notice is
reasonably calculated to notify the interested party is determined ex ante,
i.e., from the viewpoint of the government agency at the time its notice is
sent. This follows from Mullane, where this Court rested its analysis on
the information the sender had “at hand” when its notice was sent. 339 U. S.,
at 318. Relatedly, we have refused to evaluate the reasonableness of a
particular method of notice by comparing it to alternative methods that are
identified after the fact. See Dusenbery, 534 U. S., at 171–172.
Today the Court appears to abandon both of these practices. Its rejection of
Arkansas’ selected method of notice—a method this Court has repeatedly
concluded is constitutionally sufficient—is based upon information that was
unavailable when notice was sent. Indeed, the Court’s proposed notice
methods—regular mail, posting and addressing mail to “occupant,” ante,
at 12–14—are entirely the product of post hoc considerations,
including the discovery that members of petitioner’s family continued to live
in the house. Similarly, the Court’s observation that “[t]he
Commissioner[’s] complain[t] about the burden of … additional steps … is
belied by Arkansas’ current requirement that notice to homestead-owners be
accomplished by personal service if certified mail is returned,” ante,
at 14–15, is contrary to Dusenbery’s “conclusion that the
Government ought not be penalized and told to ‘try harder’ … simply
because [it] has since upgraded its policies,” 534 U. S., at 172
(citation omitted).
Second, implicit in our holding that
due process does not require “actual notice,” see id., at 169–170,
is that when the “government becomes aware … that its attempt at notice has
failed,” ante, at 5, it is not required to take additional steps to
ensure that notice has been received. Petitioner’s challenge to Arkansas’
notice methods, and the Court’s acceptance of it, is little more than a thinly
veiled attack on Dusenbery. Under the majority’s logic, each time a
doubt is raised with respect to whether notice has reached an interested party,
the State will have to consider additional means better calculated to achieve
notice. Because this rule turns on speculative, newly acquired information, it
has no natural end point, and, in effect, requires the States to achieve
something close to actual notice. The majority’s new rule is contrary to Dusenbery
and a significant departure from Mullane.
The only circumstances in which this
Court has found notice by mail and publication inadequate under the Due Process
Clause involve situations where the state or local government knew at the outset
that its notice efforts were destined to fail and knew how to rectify the
problem prior to sending notice. See Robinson v. Hanrahan, 409
U. S. 38, 39 (1972) (per
curiam) (intended recipient known to be in jail); Covey v. Town
of Somers, 351
U. S. 141, 145 (1956)
(intended recipient known to be incompetent and without a guardian).
In Robinson, the State,
having arrested petitioner and detained him in county jail, immediately
instituted forfeiture proceedings against his automobile and mailed notice of
those proceedings to his residential address. 409 U. S., at 38. Robinson,
who was incarcerated in the county jail during the entirety of the forfeiture
proceedings, did not receive notice of the proceedings until after he was
released and the forfeiture order had been entered. Id., at 38–39.
Because the State knew beforehandthat Robinson was not at, and had no access to,
the address to which it sent the notice, this Court held that the State’s
efforts were not “reasonably calculated” to notify him of the pending
proceedings. Id., at 40. Similarly, in Covey, the Court concluded
that the methods of notice used by the town—mailing, posting, and
publishing—were not reasonably calculated to inform Covey of proceedings
adverse to her property interests because local officials knew prior to sending
notice that she was “without mental capacity to handle her affairs” and
unable to comprehend the meaning of the notices. 351 U. S., at 144, 146.
By contrast, Arkansas did not know
at the time it sent notice to petitioner that its method would fail; and
Arkansas did not know that petitioner no longer lived at the record address
simply because letters were returned “unclaimed.” Pet. for Cert. 3.
“[U]nclaimed” does not necessarily mean that an address is no longer
correct; it may indicate that an intended recipient has simply failed or refused
to claim mail. See United States Postal Service, Domestic Mail Manual (DMM), §507,
Exh. 1.4.1, http://pe.usps.gov/text/dmm300/507.htm.4
Given that the State had been using the address provided by petitioner and that
petitioner had a legal duty to maintain a current mailing address with the state
taxing authority, return of the mail as “unclaimed” did not arm Arkansas
with the type of specific knowledge that the governments had at hand in
Robinson and Covey. Cf. ante, at 13. The State cannot be
charged to correct a problem of petitioner’s own creation and of which it was
not aware.5 Even if the
State had divined that petitioner was no longer at the record address, its
publication of notice in a local newspaper would have sufficed because Mullane
authorizes the use of publication when the record address is unknown. See 339 U. S.,
at 316 (“[P]ublication traditionally has been acceptable as notification
supplemental to other action which in itself may reasonably be expected to
convey a warning”).
II
The Court’s proposed methods,
aside from being constitutionally unnecessary, are also burdensome, impractical,
and no more likely to effect notice than the methods actually employed by the
State.
In Arkansas, approximately 18,000
parcels of delinquent real estate are certified annually. Tsann Kuen
Enterprises Co. v. Campbell, 335 Ark. 110, 119–120, 129 S. W. 3d
822, 828 (2003). Under the Court’s rule, the State will bear the burden of
locating thousands of delinquent property owners. These administrative burdens
are not compelled by the Due Process Clause. See Mullane, supra, at
313–314; Tulsa Professional Collection Services, Inc., 485 U. S.,
at 489–490 (stating that constitutionally sufficient notice “need not be
inefficient or burdensome”). Here, Arkansas has determined that its law
requiring property owners to maintain a current address with the state taxing
authority, in conjunction with its authorization to send property notices to the
record address, is an efficient and fair way to administer its tax collection
system. The Court’s decision today forecloses such a reasonable system and
burdens the State with inefficiencies caused by delinquent taxpayers.
Moreover, the Court’s proposed
methods are no more reasonably calculated to achieve notice than the methods
employed by the State here. Regular mail is hardly foolproof; indeed, it is
arguably less effective than certified mail. Certified mail is tracked, delivery
attempts are recorded, actual delivery is logged, and notices are posted to
alert someone at the residence that certified mail is being held at a local post
office. By creating a record, these features give parties grounds for defending
or challenging notice. By contrast, regular mail is untraceable; there is no
record of either delivery or receipt. Had the State used regular mail,
petitioner would presumably argue that it should have sent notice by certified
mail because it creates a paper trail.6
The Court itself recognizes the
deficiencies of its proposed methods. It acknowledges that “[f]ollowing up
with regular mail might … increase the chances of actual notice”;
“occupants who ignored certified mail notice slips … might scrawl the
owner’s new address on the notice packet,” ante, at 12; and “a
letter addressed to [occupant] might be opened and read,” ante,
at 14 (emphasis added). Nevertheless, the Court justifies its redrafting of
Arkansas’ notice statute on the ground that “[its] approach[es] would
increase the likelihood that the owner would be notified that he was about to
lose his property … .” Ibid. That, however, is not the
test; indeed, we rejected such reasoning in Dusenbery. See 534 U. S.,
at 171 (rejecting the argument that “the FBI’s notice was constitutionally
flawed because it was ‘substantially less likely to bring home notice’ than
a feasible substitute” (citations omitted)).
The Court’s suggestion that
Arkansas post notice is similarly unavailing. The State’s records are
organized by legal description, not address, which makes the prospect of
physically locating tens of thousands of properties every year, and posting
notice on each, impractical. See Tsann Kuen Enterprises Co., supra,
at 119–120, 129 S. W. 3d, at 828. Also, this Court has previously concluded
that posting is an inherently unreliable method of notice. See Greene v.
Lindsey, 456
U. S. 444, 453–454 (1982) .
Similarly, addressing the mail to
“occupant,” see ante, at 13, is no more reasonably calculated to
reach petitioner. It is sheer speculation to assume, as the Court does, that
although “[o]ccupants . . . might disregard a certified mail slip … , a
letter addressed to them (even as ‘occupant’) might be opened and read.” Ante,
at 14. It is at least as likely that an occupant who receives generically
addressed mail will discard it as junk mail.
III
If “title to property should not
depend on [factual] vagaries,” Dusenberry, supra, at 171, then
certainly it cannot turn on “wrinkle[s],” ante, at 5, caused by a
property owner’s own failure to be a prudent ward of his interests. The
meaning of the Constitution should not turn on the antics of tax evaders and
scofflaws. Nor is the self-created conundrum in which petitioner finds himself a
legitimate ground for imposing additional constitutional obligations on the
State. The State’s attempts to notify petitioner by certified mail at the
address that he provided and, additionally, by publishing notice in a local
newspaper satisfy due process. Accordingly, I would affirm the judgment of the
Arkansas Supreme Court.
