Due Process and Tax Sales

Tuesday, the Supreme Court will hear arguments in Jones v. Flowers, concerning the type of notice that is required to meet due process requirements in the case of tax sales of real property. The following summary is from the discusson of the case on the website of the Legal Information Institute of Cornell University:

In 1967 Gary Jones purchased a house in Little Rock, Arkansas. When he and his wife separated in 1993, his wife stayed in the house and he moved to a new address. Jones did not notify the tax authority of his new address. After both Joneses failed to pay taxes on the house, the Commissioner of State Lands sent a notice to Gary Jones' last known address via certified mail. The notice stated that the property would be subject to a public sale if Jones did not pay the delinquent taxes and penalties. The notice returned to the Commissioner as "unclaimed." Later, a newspaper announced the public sale of the Jones's house. Jones did not respond to the publication. When Linda Flowers offered to buy the property, the State again sent notice to Jones at his last known address via certified mail. This notice also was returned unclaimed. In 2003 Flowers bought the house. See Jones v. Flowers, No. 04-449, 2004 WL 2609800 (Ark. Nov. 18, 2004).

Jones then filed a complaint, claiming that the sale violated his rights under the due process clause of the Constitution because he never received actual notice of the tax sale or of his right to redeem. The trial court upheld the sale, finding that the State complied with due process by sending notices via certified mail to Jones’s last known address. See id.

The Arkansas Supreme Court affirmed the trial court's holding. The court cited Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 214 (1950), which held that due process does not require actual notice, and that notice is sufficient if it is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Based on this standard, the court reasoned that the State was not required "to conduct a reasonable search of public records in an attempt to ascertain Mr. Jones's correct address before selling his property." The court found that the State only needed to send notice to Jones's last known address, which it did. See Jones v. Flowers, No. 04-449, 2004 WL 2609800 (Ark. Nov. 18, 2004). The court accordingly concluded that the sale was valid because Jones received adequate notice for due process purposes. See id.

The Supreme Court agreed to review the case to resolve the split among state and federal courts on the question of what steps the government must take to locate property owners before taking their property.

A more complete discussion of the case, including the policy implications and links to the briefs can be found at the LII link above.