HOW MUCH LEGAL NOTICE IS ENOUGH NOTICE? Notices function like the nervous
system in the human body. Sending a notice should produce a sensation;
sometimes it should trigger a response. The law mandates notices for myriad
of different purposes. Some notices run between private parties, while
others run between the government and a private party. Depending on the
context, the law specifies how and upon whom a given notice must be served.One
would have thought that by the early 21st-century the courts and legislatures
throughout this country would have figured out the correct rule for serving
any legal notice. So I thought, until the United States Supreme Court
put a new twist into a rule for service of property tax notices -- a rule
which few would have questioned before. The case, Jones vs. Flowers [4/26/06],
came out of the State of Arkansas. Jones owned property in Little Rock.
He had paid his mortgage every month for 30 years, and the mortgage company
took care of paying this property taxes. However, after he had paid off
the mortgage fully, there was no mortgage company to send in the taxes;
and Jones left them unpaid. According to Arkansas law, a commissioner
started the process of selling Jones' home for unpaid taxes. The Commissioner
mailed a certified letter to Jones at the address of the property. But
no one was at home to sign for the certified mailing. And no one appeared
at the post office to pick up the letter within the following 15 days.
The letter went back to the Commissioner marked unclaimed. Two years later,
just before publishing a notice of public sale, the Commissioner sent
another certified letter to Jones at the same address. Again, the letter
was returned unclaimed. Arkansas law required Jones to keep the State
informed about his current mailing address.The Commissioner then conducted
a sale of the home. A person named Flowers (Linda, not Gennifer,) bought
the home at the sale. She then proceeded to evict the Jones family. Then
Jones became inspired to file a lawsuit asserting that the State had taken
his property without due process of law. The Arkansas Supreme Court thought
otherwise, but the United States Supreme Court ruled in favor of Jones.
The Supreme Court's decision is remarkable in at least two respects:
First, the opinion was written by Chief Justice Roberts, newly appointed
to the Court and carrying the brand of an arch conservative. Four so-called
liberal justices joined in the Chief Justice's opinion. Second, the
decision holds that the government's duty to provide legal notice
to the taxpayer does not end once the government has sent a notice, in
compliance with statute, which is reasonably calculated to reach the taxpayer
when sent. Instead, the Court held that, if the mailed notice is returned
unclaimed, the government must make a second try, even though the statute
does not say that anything more must be done.Justice Roberts reasoned
that the government must demonstrate its sincere desire actually to inform
the taxpayer. Government must re-send the letter or take some other reasonable
step such as first-class mailing or posting on the front door of a home.
He wrote: "Deciding to take no further action is not what someone
'desirous of actually informing' Jones would do; such a person
would take further reasonable steps if any were available." Of course,
Justice Roberts was being extremely generous in assuming that government
possesses any human emotion, much less a desire to warn the taxpayer,
when engaged in collecting taxes for the public treasury. That is not
the nature of any tax collector. The remaining conservative justices --
Thomas, Scalia, and Kennedy, -- joined in a dissenting opinion written
by Thomas. They insisted that the Arkansas statutes satisfied due-process
requirements because they required both certified mailing and newspaper
publication of the notices. The dissenting justices complained that Justice
Roberts had gone beyond the minimum constitutional requirement and had
placed an impossible burden upon the State. The dissenting opinion objected:
"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." It is true that the Supreme Court
has never required actual notice for any "legal notice" under
the Constitution.
I believe the dissenters are correct. But I am also curious as to how strong
the ripple effect of the decision will prove in each state. In essence,
the decision requires that government, even after it complies with its
own statutes for giving legal notice, take another look at the notice
to see if another attempt must be made. So far as I know, no statute here
in California contains any such requirement. While it is possible that
the Court's decision may be restricted to Arkansas law or even to
property-tax foreclosure sales only, the philosophy behind the decision
is potent enough to change the rules for legal notices across the board.
Stay tuned for repercussions.