▪ 2006 Land Use in Review: Return to Sender - Elvis and Notice

I gave a letter to the postman,
he put it his sack.
Bright and early next morning,
he brought my letter back.

In Jones v. Flowers, 547 U.S. ___ (Apr. 26, 2006), the U.S. Supreme Court answered the question of what further obligation the government has to provide a property owner notice of an impending sale of his property when a certified letter is, in the words of the classic Elvis song, "Returned to Sender."  The opinion answered whether the Due Process Clause of the U.S. Constitution requires a state to take additional reasonable steps to notify a property owner of an impending tax sale if a written notice is returned undelivered.

Mr. Jones didn't pay his property taxes.  The State of Arkansas, like most government entities, did not appreciate Mr. Jones' oversight, and after several years of such behavior, sent him a certified letter informing him that if he didn't pay up, his house would be sold.  Mr. Jones, however, had moved out of the house, so he didn't get the letter, which was returned to the state "unclaimed."  The state, hearing no response from Mr. Jones, published a notice in the newspaper and sold the house.

Jones sued, asserting that the Due Process Clause of the Fourteenth Amendment requires the government do something more if a certified letter is returned undelivered.

The Court agreed, holding that the state should have taken additional steps to provide  Jones with actual notice.  It is not sufficient to send a letter that is returned undelivered and to publish a notice in a newspaper.  The "government must take additional reasonable steps to provide notice before taking the owner's property." 

Due process does not require that a property owner receive actual notice before the taking, but the notice the government provides must be "reasonably calculated" under the circumstances to apprise the party of the pendency of the action and provide them an opportunity to object.  The key fact in the case was that the government knew its attempt to provide notice by certified mail had failed, since the letter was returned undelivered.

The government had an obligation, the Court held, to do something more, such as resend it by regular mail.  The Court did not define the outer limits of what due process requires, only that the State of Arkansas had not done enough before the forced sale of a person's home and property. 

This time I'm gonna take it myself
and put it right in her hand.
And if it comes back the very next day
then I'll understand.

In the Court's words, "I tried" is not good enough.  Elvis would be proud.