Daily Development for Thursday, December 16, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

CONSTITUTIONAL LAW; DUE PROCESS; PROCEDURAL DUE PROCESS; NOTICE: Two day notice period under drainage act before which drainage district could take private property and determine just compensation provided insufficient due process safe guards and was unconstitutional.

Branaman v. Long Beach Water Management District, 730 So.2d 1146 (Miss. 1999).

The "appraisement" procedure in question was one for acquisition of an easement for a poublic pipeline right of wayThe statute required that "no judgment by default shall be entered . . . unless it appear that [the defendant owner] has been duly served with summons at least two days prior to the return day."

Although there may have been some disagreement on the court as to whether the procedure was technically an eminent domain proceeding in Mississippi, and whether a jury trial was required (the majority answered no), the court was unanimous on the point that for any public taking of property, two days is an constitutionally deficient notice period.

The court did little more than cite Mullane and the basic Mississippi cases following it for the proposition that the government cannot deprive a person of "an important right" without "a reasonably advance notice of a hearing at which . . . one is afforded a meaningful opportunity to assert and defend that right."

The court went on to hold, however, that the proceeding itself was not unconstitutional, even though the statute was unconstitutional on its face. The defendant property owners received longer than two days notice, and in fact appeared in court and asked for and received an extension to respond.

Comment 1: Note that the insufficient notice was two days from return of service of process. The court does not say what is an adequate notice period, only that two days is not adequate. Undoubtedly there are many cases ruling on the adequacy of longer notice periods, but courts frequently state that many factors, including the nature of the right and the nature of the proceeding, are relevant to the adequacy of the due process involved.

If the question is whether a landowner, starting "cold" has sufficient time to identify a lawyer, meet with the lawyer, discuss the issues and prepare for a strategy, then one would assume that a considerably longer period would be required.

Comment 2: Keep in mind that the primary focus of the hearing is the adequacy of the compensation. Presumably the landowner would also have the right to challenge the propriety of the taking of his property for the proposed public improvement, but likely would not be able to challenge the improvement itself. Thus the issues are relatively narrow. Nevertheless, if there is to be a hearing at all, some level of preparation is required. It does not seem unreasonable to say that an advance notice period of at least fifteen days ought to be required. (The editor is merely postulating - there is nothing in the case suggesting that fifteen days is the right number.)

Comment 3: If indeed, a fair notice periood is fifteen days, what is a fair requirement for mailing notice? Remember in this case there was a "real" notice period - running from service of process. When notice is mailed, letters frequently don't arrive until some time after they are mailed. At one time, we could count on local delivery occurring within two days time. But can we rely on that standard today? Not judging by the editor's mail delivery. It is not unusual, especially in the holiday season, for a letter to take a week or ten days. This would suggest that a mailed notice period, if measured from the moment of mailing the notice, ought to be longer than fifteen days.

Comment 4: All of this is a prelude to the editor's principle point: What does this case say about the dur process sufficiency of the 20 day deed of trust foreclosure mailed notice period that appears in a number of states, including, if memory serves, Virginia, Texas, and Missouri, as well as in the new HUD foreclosure statutes?

One might argue that the party suffering foreclosure will already be aware of the default and pending foreclosure. That is true of the parties liable on the debt and usually the current owner of the fee, but it likely will not be true of other parties with junior interests in the property, such as lessees, easement holders, junior mortgagees, and the like, who have the right to Due Process notice as well (Mennonite) before their "important legal right" - their property interest - is taken away.

Of course, if there is no government action, there is no Due Process issue, and most state law private foreclosure probably don't involve state action. But HUD foreclosures do. Is that notice period adequate? The editor addresses these and other issue concerning federal foreclosure laws in an article entitled "The New Federal Foreclosure Laws," 49 Oklahoma Law Review 123 (1996). The general federal foreclosure law discussed in that article never was enacted, although undoubtedly it is still lurking out there. But the article also discusses the two HUD statutes, which involve similar issues.

Although, of course, Due Process is measured on a sliding scale, what is the essential difference between the question of notice afforded to a landowner as to appraisement of an easement and that afforded to a junior party about to lose its entire property interest without any compensation at all?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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