Outside the Beltway

Supremes: State Must Tell You Before Stealing House

James Joyner · Thursday, April 27, 2006 · 7 comments

The Supreme Court ruled that a state can not simply confiscate a person’s house without first telling them.

The Supreme Court, led by Chief Justice John G. Roberts Jr., ruled Wednesday that the government must make extra efforts to notify a homeowner before it sells off his property for unpaid taxes. The Constitution says the state may not take away a person’s property “without due process of law,” and Roberts said that meant officials “must take additional reasonable steps” to contact an owner before taking his property. The ruling in an Arkansas dispute applies to all levels of government, from the Internal Revenue Service to local tax collectors.

The chief justice split with the court’s most conservative justices and with Bush administration lawyers, who said sending a letter was all that was required of the government, even if it wasn’t delivered.

The 5-3 decision is a victory for an Arkansas man who lost his house several years after he had paid off the mortgage. When his former wife failed to pay the property taxes, the state moved to seize and sell the house. Officials made no effort to contact the homeowner other than to send a certified letter that was returned undelivered. In response to the news that the letter was returned, “the state did nothing,” Roberts said. They did not call the house, post a notice on the property or send a person to speak to the occupants, he said. They simply put a notice in the local newspaper and then sold the house at auction — for one-fourth of its value. Gary Jones, the homeowner, lived in a Little Rock, Ark., apartment and first learned of the unpaid taxes and the sale of his house when his daughter called to say she was being evicted. Jones sued the state, but lost in the Arkansas courts. He then appealed his case to the Supreme Court, contending the state’s action was unconstitutional.

Roberts joined with the court’s four liberal justices in voting to reverse the state’s decision. “Mr. Jones should have been more diligent with respect to his property — no question,” the chief justice said. “But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking. “There is no reason to suppose that the state will ever be less than fully zealous in its efforts to secure the tax revenue it needs,” he said. “The same cannot be said for the state’s efforts to ensure that its citizens received proper notice before the state takes action against them. In this case, the state is exerting extraordinary power against a property owner — taking and selling a house he owns. It is not too much to insist that the state do a bit more to attempt to let him know about it.”

Justice Clarence Thomas dissented sharply, saying the decision could force officials to contact “thousands of delinquent property owners.” The house sale in Arkansas was “caused by the property’s owner’s own failure to be a prudent ward of his interests,” Thomas wrote. “The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws.”
Justices Antonin Scalia and Anthony M. Kennedy joined him in dissent.

Justice Samuel A. Alito Jr. did not participate because the case, Jones vs. Flowers, was argued before he was confirmed to the court by the Senate. The Bush administration joined the case on the side of Arkansas. “Due process is satisfied when notice of an upcoming tax sale is sent by certified mail,” said U.S. Solicitor General Paul D. Clement.

The ruling strikes me as a no brainer. Thomas’ argument that it would be hard to send the sheriff out to post a note on someone’s door is absurd. Indeed, states routinely require much more onerous requirements of landlords who are trying to evict deadbeat renters. Surely, some reasonable level of due process is required before confiscating a man’s property.

Indeed, as Roberts notes, the Constitution clearly stipulates “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is unfathomable to me that merely sending out a letter constitutes “due process.”

Thomas’ arguments strike me as bizarre:

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.

So, if a man is away from his home for three days and did not happen to read the classified ads in an out-of-town newspaper one day, the state is allowed to simply sell his home out from under him? That is simply absurd.

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.

I’m a reasonably diligent fellow. Occasionally, however, I am away from home. Indeed, I am virtually never at home when the postman comes, what with having a job and all. Occasionally, I am even on vacation or out of town on business for three days in a row–even more. Nor do I take the Washington Post or Richmond Times. If I did, I would not read the classified ads on the off chance that they mentioned that my property was about to be confiscated.

The opinions are available at JONES v. FLOWERS et al.