Plaintiff failed to pay property taxes after he moved out of his house. After several years of unpaid property taxes, Defendant Wilcox sent two notices, one about the tax delinquency and one about the impending sale of the property, via certified mail, but both were returned as unclaimed. The property was subsequently sold to Defendant Flowers in a private sale. Plaintiff sued Defendants in an Arkansas state court, claiming that the sale of his house violated his Fourteenth Amendment due process rights because he was never actually notified of the sale. The trial court granted summary judgment in favor of Defendants. The Arkansas Supreme Court affirmed. Plaintiff appealed.
Due Process Clause requires the government to take reasonable steps to serve the notice if service by mail is ineffective.
Plaintiff owned a house at 717 North Bryan Street in Little Rock, Arkansas, for which he failed to pay property taxes. After three years of delinquency, Defendant Wilcox sent a letter via certified mail to Plaintiff’s address, informing him of his delinquency and that he had two years to pay his back taxes or the property would be sold. The letter was returned as “unclaimed.” Two years after the letter was returned, Defendant Wilcox published a notice of public sale in the Arkansas Democrat Gazette. The advertisement did not receive a response, so a private sale of the property was arranged with Defendant Flowers. Before the purchase wrapped up, Defendant Wilcox sent another letter to Plaintiff, which was also returned as “unclaimed.” Defendant Flowers then purchased the house and personally served a detainer notice on the property, which was accepted by Plaintiff’s daughter. Plaintiff was notified and sued Defendants in an Arkansas state court, claiming that the sale of his house violated his Fourteenth Amendment due process rights because he was never actually notified of the sale. The trial court granted summary judgment in favor of Defendants. The Arkansas Supreme Court affirmed. Plaintiff appealed.
Does the Fourteenth Amendment‘s Due Process Clause require the government to make any additional effort to provide notice before taking the property when mailed notice of a tax sale or property forfeiture is returned undelivered?
Yes. The Court held that as mailed notice of a tax sale was returned unclaimed, the state should have taken additional reasonable steps to attempt to provide notice to the property owner before selling his property since it was practicable to do so.
Justice Thomas, Scalia, Kennedy
The dissent argued that the majority should review the sufficiency of the notice to Plaintiff from the perspective of the relevant government agency at the time the notice was sent. The state went beyond the constitutional minimum by additionally publishing notice in a local newspaper. Because actual notice wasn’t required by the law, due process didn’t require the state to take additional steps, especially in cases like this one where Plaintiff had a statutory duty to pay his taxes and to report any address change to the state’s tax authority. In addition, the majority’s holding would force states to consider additional means better calculated to achieve notice every time they had doubt about whether notice had reached an interested party. This would require the state to achieve something close to actual notice. Lastly, many of the alternatives proposed by the majority were overly burdensome on the state’s ability to transact business despite being no more likely to effect notice than the methods the state had used.
Due Process Clause requires the government to take reasonable steps to serve the notice if service by mail is ineffective. Due process does not require that a property owner receive actual notice. However, due process requires the government to provide notice 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. In other words, the government must make a sincere effort. While reliance on service by mail is not unreasonable on its face, there are instances when the state is required to enlist other forms of service. When the state is aware that service by mail has failed, it must take other reasonable steps to ensure that service is achieved. This fact is especially true when the state had enough time between when it learned that mail service had failed and when the sale of the property was to take place.
Here, the state knew that its first effort to notify Plaintiff had failed when the notice was returned. It knew that the owner was no better off than if the notice had never been sent. In addition, the state had about 2 years between when it learned that mail service had failed and when the sale of the property was to take place. Because it knew that its efforts to notify Plaintiff had failed, the state was required to take additional reasonable steps (e.g., sending notice to “Occupant,” posting notice on the house’s front door, etc.) to notify Plaintiff when the notice was promptly returned unclaimed. The fact that Defendant Wilcox placed an advertisement in the newspaper for the sale was not sufficient to constitute notice. For these reasons, the court reversed the decision of Arkansas Supreme Court.