Supremes: State Must Tell You Before Stealing House

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.

FILED UNDER: Supreme Court, Uncategorized, US Constitution, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. legion says:

    Wow. Thomas’ statements are just wack. While he may have been less active than he could have been, it’s pretty clear from what I’ve seen that Jones was neither a ‘scofflaw’ nor a tax evader. That he tried to paint the case with that brush, to me, just shows his blatant pre-judgement of the entire issue.

    And Clement’s pathetic defense is dishonest on its own – if the certified mail notification was _returned_, then no rational person would consider it to have been ‘sent’.

  2. Jay says:

    Amazing. Thomas is usually the (sometimes lone) voice of reason, and he could not be more wrong this time.

  3. RJN says:

    Thanks for posting this. It is shocking to me how caviller the government can be when dealing with the citizens to whom it owes its allegiance. The citizens are thought of, by their hired help, as “the herd” who are there to milked and bled.

  4. DC Loser says:

    Well, we do deserve the government we vote for. If you don’t like it, change it.

  5. Kent says:

    I hate to be the contrarian here, but …

    First, your post title is bogus. When the state seizes someone’s house because he didn’t pay his property taxes, the state is not “stealing” his house.

    I certainly favor more notice than a certified letter before the state carries out such a seizure. So I find the decision itself congenial. However, the legal reasoning behind it looks very shaky. Arguing that the 14th Amendment due process clause requires this or that form of notification amounts to buying in to the highly questionable concept of substantive due process. The Court should be deciding whether the procedures mandated by laws of the state of Arkansas were being properly and fairly carried out, rather than what those procedures should be. It’s up to Arkansas voters to elect legislators who will pass laws mandating better procedures.

    Which is not to say that the way Arkansas treated Gary Jones didn’t stink.

    Of more concern to me is the willingness of the state to auction the house at 1/4 its market value — a pervasive pattern throughout the country, if anectodal information is any guide; and a greater injustice than the lack of notification (though the latter might have helped prevent the former.) Too bad the Court didn’t consider the issue of just compensation for the property — its fair market value minus the back taxes. I could have supported that kind of legal reasoning.

  6. James Joyner says:

    Kent: The idea that the state owns your house and you’re only entitled to keep it if you’re up to date on your taxes strikes me as extreme. Especially since there had been no hearing on the matter, his ex-wife was the one in arrears, and he had no clue that this was happening.

    And, while I agree that having the courts decide the fine points of what Arkansas forfeiture laws should be is potentially problematic, our system has long combined law and equity. The Supremes have some obligation to make sure that the laws pass the smell test.

    Remember, due process is required by the 14th Amendment, so it’s not as if the states have carte blanche. They couldn’t, say, have skipped the certified letter and only run a classified ad and gotten away with calling it “due process.” Or no?

  7. floyd says:

    where’s due process in ricoh?