Jones v. Flowers

The Supreme Court today decided Jones v. Flowers, a procedural due process case involving the tax forfeiture of a home.  The state had sent Jones notice by certified mail, which was returned as undelivered.  The issue in the case was whether the state had to do more to notify the property owner once the state knew, through the return of the certified mail notice, that the attempt at notice had not been successful.  In an opinion by Chief Justice Roberts, the Court held that in the circumstances presented by the case, due process required the state to take additional reasonable steps to provide notice.  Justice Thomas dissented, joined by Justices Scalia and Kennedy.  Justice Alito did not take part.  The opinions are available here.  ScotusBlog has a post on the case here.

Here are a few preliminary thoughts about the case:

First, it is interesting that Chief Justice Roberts went with the liberal wing on this case.  The Court's last procedural due process notice case, Dusenberry v. United States, 534 U.S. 161 (2002), had split 5-4 on liberal-conservative lines in favor of the government.  It is possible that the case might have gone the other way if Chief Justice Rehnquist and Justice O'Connor were still on the Court.  Dusenberry, however, was a prisoner case, and I have a personal view that it is a mistake to try to draw conclusions from prisoner cases and apply them to other contexts.

Second, although the Court ruled against the government, it did not go as far as petitioner had asked it to go.  Jones was represented at the Court by the Public Citizen Litigation Group.  Public Citizen brought the case seeking a holding that if certified mail notice is returned, the state has an obligation to try to find the property owner's current address through voter registration lists, internet searches, etc.  Jones's counsel had a hard time with this position at oral argument, and the Court ultimately rejected it as being too burdensome on the state.  Instead, the Court held that under the circumstances presented by the case, it would have been reasonable for the state to take other, less burdensome steps -- post a notice on the property itself and send a notice by regular mail, which, unlike registered mail, would not automatically be returned to the sender.

Third, while I understand that the government does not want to have to jump through too many hoops to provide notice to delinquent property owners, I don't really understand the state's position in Jones v. Flowers.  It seems to me that in tax delinquency cases, the state's paramount interest is to get the back taxes paid with as little effort as possible.  Tax forfeitures require a lot more effort than taking a few relatively minor steps to provide actual notice to the property owner.  In part for this reason, many states require additional efforts to provide notice.  Indeed, Arkansas changed its notification procedures after the Jones v. Flowers litigation began (meaning only that the statute was enacted later; I don't know whether the litigation played any role in the Arkansas legislature's decision to change the procedures).  Towards the end of his opinion, Chief Justice Roberts stated that "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."  I'm not sure that in this case the state actually acted in its fiscal interest, and I'm not sure that economic rationality is something that can be expected from government actors.

UPDATE:  I also think that it is interesting that the liberal/conservative wings were on opposite sides in protecting a property owner's right to maintain ownership of a home in Jones v. Flowers and in Kelo.  The constitutional issues of course are very different, and Jones v. Flowers involved fault on the part of the property owner.  But it is striking to see the same justices who are so pro-property owner in takings cases take such a strong stand against requiring the government to take relatively modest steps to notify people before their homes are taken.

Ben Barros

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