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How Much Legal Notice is Enough Notice?

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.

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