Daily Development for Thursday, April 27, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

CONSTITUTIONAL LAW; DUE PROCESS; NOTICE; TAX FORECLOSURES: Supreme Court reinterprets Mullane in context of tax foreclosures.  County collector must do “something” when it becomes aware that its mailed notice of foreclosure has not been delivered to the property owner.  But Court mum on exactly what that “something” is.

Jones v. Flowers, 547 U.S. ______, 2006 Westlaw 1082955 (4/24/06) 

Arkansas law, the relevant state law in this case, requires that land owners keep the County property tax authorities appraised of their current address.  Of course, few taxpayers actually think about such a requirement, and likely most have no actual notice of it. 

Here, Jones separated from his wife in 1993 and moved out of the family home where had lived for several decades.  He continued to make mortgage payments until the mortgage was fully paid.  The mortgage payments included reserves for taxes and insurance, and Jones apparently did not think to start paying property taxes himself after the mortgage escrows stopped as of 1997.  In 2000, the local county tax collector sent notice of the delinquency and a right to redeem from it  to Jones by certified mail to the property address.  It came back with a notation that it had been “unclaimed.”  Apparently no one was at the home to sign for it when a delivery was attempted, and no one later retrieved it from the post office.  Jones claimed he had no knowledge of the notice. 

Two years later, the County advertised the property for sale at foreclosure, but no bids were received, and, pursuant to state law, the County then was permitted to negotiate a sale of the property.  In a few months, it received an offer from Flowers to buy the property for $21,000.  The parties stipulated in the subsequent court proceeding that the value of the property at that time was $80,000.

The County again sent a certified mail notice to Jones at the property address that the property would be sold to Flowers if Jones did not exercise his redemption right within thirty days.  Again, the letter was returned stamped “unclaimed.”

Flowers bought the property and promptly sought to evict its occupants, who included Jones’ daughter, who contacted him, making him aware of developments for the first time.

Jones alleged that his property had been taken without Due Process of law, in that the county had made an inadequate attempt to provide him with pre-deprivation notice as required under Mullane v. Central Hanover Bank and Trust, the core Due Process notice case, and Mennonite Bd. of Missions v. Adams, which applied Mullane to property tax foreclosures. 

The Court held, 5-3 (Justice Alito not participating) that the foreclosure practice here did not meet the Mullane standard, although it was somewhat opaque about exactly what that standard is.  Certainly it is far less than the ringing words of Mullane (quoted by the court) suggest:

“[W]hen notice is a persons due . . . [t]he means employed must be such as one desirous of actually iforming the absentee might reasonably adopt to accomplish it.” 

In fact, the court has, since Mullane, significantly retreated from the standard, although it continues to quote from it regularly.  For instance, the court certainly has held that actual notice is not required to be shown, and in fact has held that notice by certified mail typically will satisfy the standard.  But the special twist in this case was that, following the mailing of the certified mail letter, the tax collector received notice that the letter had never been delivered.  The Court ruled that in this case, where the tax collector had reason to believe that the owner of property was not aware of its impending forfeiture, the tax collector must do “something” more.

The court suggested that one reasonable thing the tax collector might have done would be to resend the letter by regular mail, with the thought that such a letter might be forwarded.  It held that the return of the letter marked “unclaimed” gave the government special information about the circumstances of this notice recipient to put it on notice that it was likely that the notice recipient had not received any notice.  This is true even if the special information that the government has it obtained after the regular form of notice is attempted. 

The tax collector, of course, urged that state law in Arkansas required that Jones keep it notified of a notice address, that every tax payer has a duty to see to it that taxes are paid, notice or not, and that there was reason to believe that Jone’s relatives at the property address might have notified him.  None of these arguments availed.

The Court responded that, although in general the requirement that taxpayers notify the tax collector of their notice address provided significant support that mailed notice would be sufficient in most cases, the failure to comply with the notice requirement could not be seen as a waiver of the important Due Process rights embodied in Mullane.  Similarly, although the state has no obligation to notify taxpayers of their tax liability, the significant deprivation of property rights embodied in the tax foreclosure process does require more elaborate notice requirements for Due Process to be satisfied.  Finally, the argument that relatives would have notified Jones of the impending foreclosure was not valid here, since the relatives, although they might have known there was a letter from the County waiting for Jones at the post office, did not know what that letter contained, and could not obtain it without Jones’ signature. 

But the real question, which the Court appears to dodge, is what additional behavior of the tax collector would satisfy the Mullane standard.  The Court admits that there must be some reason to believe that additional reasonable steps would more likely have resulted in notice to Jones.

“While it is not our responsibility to prescribe the form of service that the government should adopt . . . if there were no reasonable additional steps the government could have taken upon the return of the unclaimed notice letter, it cannot be faulted for doing nothing.” 

The Court says that here, the only information that the tax collector had was that Jones had not retrieved the letter.  It was not aware that Jones no longer lived at the notice address.  Therefore, the Court suggested, a regular mail letter might have been a simple expedient, as reasonably calculated under the circumstances to reach Jones either at the property address or at an address to which the letter could be forwarded.  It also suggested posting notice on the property or addressing the notice letter to “occupant.” 

The Court expressly rejected the argument in this case that the tax collector had an obligation to check for Jones’ listing in the telephone directory.  It noted that Jones’ name was rather common, and that such an open ended search imposes burdens “significantly greater” than the options it suggested - options that appear in the statutes of other states.

The dissent argued that the Court had expanded the Mullane standard to impose unreasonable burdens on the state.  The majority opinion, however, denied that, and specifically noted that it adhered to the rule articulated earlier that if someone signs for a certified mail letter, then the state need not be concerned that that “someone” is not the addressee and might not deliver the letter to the proper recipient.  To require more, in the words of a prior decision, might be to impose a duty on the state to undertake “heroic measures.”

The dissent, concerned about providing reasonable discretion to state and local government in making decisions about notice, underscored prior rulings that had stated that ordinarily mailed notice to a record address is sufficient.  It pointed out that certified mail requirements meant that three attempts were made to deliver the letter to Jones at the notice address, and the dissent noted that in Arkansas the taxpayer had a burden to appraise the tax collector if his address had changed.

The dissent argued that when the government must react specially in response to information that a particular notice has not been received, “there is no natural end point” to the notice process, imposing significant additional burdens on government. 

Comment 1: In a 2003 New York decision, Mosssafa v. Kleiman, 2003 WL 443797 (N.Y. 2/25/03) (The DIRT DD for 4/4/03)  the New York Court of Appeals held that the local tax collector had no duty to seek out the taxpayer’s actual address even when a letter was returned with the legend that the taxpayer was not at the notice address and had not received the notice.      The New York court did acknowledge that the tax collector could not simply ignore the fact that it knew that the notice had not been received, but that its further duty was limited to simply looking in the surrogate’s office for an alternate address.  It had no duty to look in other county records, such as voting rolls.  The editor found that result “shocking” and inconsistent with his view of Mullane.

Increasingly, however, it appears that the Supreme Court may be moving toward a toothless notice requirement.  This seems ironic, since modernly so much more information is available to anyone actually seeking to find and notify an individual than was the case at the time of Mullane.  So it is probably much easier to actually find and notify.  But in fact, this may be the genesis of the Court’s conservatism.  Since in fact there are so many sources of information, as the dissent in this case suggests, to require searching for the recipient’s true address may burden the state with a process as to which there is no logical ending point.

Comment 2: It is interesting to note that Justice Thomas, author of the dissent, in fact identified the issue of what happens when the state knows that it is likely that the recipient is not at the notice address.  He commented that, based upon the analysis of the majority opinion, there is no principled basis for concluding that the state can avoid the duty to look further for an address. (Note 6) The majority appears to duck the issue entirely. 

The Editor agrees that there is no principled argument that Mullane does not compel some effort in the Mosaffa type of case (the state knows that the address is wrong) to look for an alternate address.  In his comments on Mosaffa, however, the Editor stopped short of a broad search of all phone books an utility records:

“The editor understands that there is an argument for "mass due process" here. Public agencies can't be required to be overly punctilious at taxpayer's expense. "Reasonable" is good enough. Therefore, it may be admitted that the County need not have checked outside of the public records. There are many phone books these days and they are changed frequently, and if we required phone book checking, we'd have to decide which phone book was sufficient.

Further, the County need not be required to have an Internet adept on its foreclosure staff. But why is it all that great a burden to at least check the voting records or other records that contained address at which public agencies regularly had been able to reach the property owner?

. . . [T]he blanket statement that there is no requirement to go beyond the limited records available in one public office when a potentially ruinous tax foreclosure is at hand establishes precedent that difficult to distinguish away. It seems to the Editor that the court has overreached here. Tax foreclosures aren't so numerous that a little more caution isn't in order when the potential consequences of an unnoticed foreclosure are so severe.”

The present case doesn’t reach this difficult issue, but the Editor feels some foreboding about the direction the Court is moving.  Maybe he won’t get notice when the issue is decided, and live on in blissful ignorance.  . 

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