When the Sender Knows More

When the Sender Knows More

Mullane judges notice “under all the circumstances,” and one circumstance that can decide a case is what the sender already knows about the recipient. Due process requires “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.”¹ A method that serves the ordinary owner can fail an owner whom the sender knows to be out of reach, unable to understand a notice, or already missed by an earlier letter. The sender is then measured against the yardstick used throughout this chapter: the means must be such as one desirous of actually informing the absentee might reasonably adopt.²

Knowledge reaches the sender at one of two moments. The officials may hold it before they send anything, as when they know the owner is in jail (Robinson v. Hanrahan) or is incompetent and unprotected (Covey v. Town of Somers). Or it may arrive afterward, as when a certified letter comes back unclaimed. In Jones v. Flowers, the Court held that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to give the owner notice before selling his property, if practicable.³

Two limits apply in both situations. The duty depends on what the sender actually knows, and it demands reasonable effort only. The Court has rejected any notion that due process requires “heroic efforts” to effect notice,⁴ and the additional steps need only be reasonable.⁵

Facts Known Before Sending

What a sender already holds in its files sets the floor. The statute in Mullane required nothing more than newspaper publication, addressed generally to everyone interested in a common trust fund.⁶ The Court held that published notice could not bind beneficiaries whose names and addresses were known, because publication was not reasonably calculated to give them actual notice when more effective means, such as mail or personal service, were open.⁷ The rule sorts parties by what the sender knows: those whose names and addresses are known or reasonably ascertainable must be notified by the best practical means, such as mail, and publication may suffice for the rest.⁸ Later decisions applied the rule to landowners whose names and addresses appeared in official records, and they held publication, with or without posting, inadequate.⁹

The same logic reaches facts that have nothing to do with an address. A rule that is valid in general can be invalid as applied to an individual whom it deprives of a protected right,¹⁰ and the notice cases follow that principle. A procedure adequate for the typical owner fails for an owner about whom the officials know something that defeats it. The known fact may break the channel, or it may break the recipient’s ability to use any channel.

The first kind of fact breaks the channel. In Robinson v. Hanrahan, officials arrested a car owner, held him in the county jail, and began forfeiture proceedings against his car, mailing notice to his home address. He stayed in jail while the proceedings ran and learned of them only after the forfeiture order was entered. The Court held the notice inadequate because the State knew he could not be at the address to which it wrote. Mail to a home is ordinarily dependable, but these officials had put the owner where mail could not follow.

The second kind of fact leaves the channel open and defeats the recipient’s capacity to use it. In Covey v. Town of Somers, a town foreclosed on a landowner after giving notice by mailing, posting, and publication, although its officials knew she was incompetent and had no guardian to protect her.¹¹ The Court held that publication sufficient to give a normal person an opportunity for a hearing was not sufficient for a known incompetent, and it rejected the argument that the Fourteenth Amendment demands no more for an incompetent than for the ordinary taxpayer.¹² Stacking routine methods accomplished nothing, because each delivered information to a person the officials knew could not act on it. In the words of Boddie v. Connecticut, the State’s obligations under the Fourteenth Amendment “are not simply generalized ones; rather, the State owes to each individual that process which, in light of the values of a free society, can be characterized as due.”¹³

Mennonite Board of Missions v. Adams generalized the point: particularly extensive efforts to give notice may often be required when the State is aware of a party’s inexperience or incompetence. The point does not run in reverse. A State with no such knowledge may not forgo even the modest burden of mailing notice to parties who are particularly resourceful, and a party’s ability to safeguard its own interests does not relieve the State of its constitutional obligation.¹⁴ Knowledge of weakness raises the required effort, while mail to a reasonably ascertainable address remains the baseline for everyone else.

The rule rests on what the officials actually know, and it does not oblige them to hunt for facts they have no reason to suspect. Mullane itself dispensed with more certain notice to beneficiaries whose interests were conjectural or future, or who would not in due course of business come to the trustee’s knowledge, because impracticable and extended searches are not required in the name of due process.¹⁵ What remains is a case-by-case look at the totality of the circumstances, including any unique circumstances known to the government.¹⁶

A bar-exam stem often reports that the officials followed the statute’s notice provisions and then mentions, almost in passing, that the recipient was in custody or known to be incompetent. Compliance with the service statute does not answer the constitutional question, which asks what the officials knew when they chose the method and whether that method could work for this person.

The timing of the knowledge raises a harder question. In Robinson and Covey the officials held the information before they chose a method, whereas Jones concerned information that reaches the sender after the letter is mailed and before the property is taken. The Court treated the government’s knowledge that its notice had failed as a critical fact,¹⁷ and commentary reads the decision as asking what a person who really wants to notify a party would do with that news.¹⁸ The next part follows that question.

Duty After Returned Notice

Jones v. Flowers answers what a sender must do when the fact that defeats its method arrives after the notice has gone out. Gary Jones lived in a Little Rock house with his wife until they separated; he then moved to an apartment elsewhere in the city, and she stayed in the house. After he paid off the mortgage, the property taxes, which the mortgage company had been paying, went unpaid, and the property was certified delinquent. The Commissioner of State Lands mailed a certified letter to Jones at the house, warning that the property would be sold at public sale in two years unless he redeemed it. No one signed for the letter, no one collected it at the post office, and it came back marked “unclaimed.” Shortly before the sale date, two years later, the Commissioner published notice of the sale in a newspaper. No one bid. When Linda Flowers offered to buy the house, the Commissioner mailed a second certified letter to the same address, and it too came back unclaimed. Flowers bought the house for $21,042.15, about a quarter of the $80,000 value the parties stipulated. Jones learned of the sale only when an unlawful detainer notice was served on his daughter, who contacted him.

The Arkansas courts upheld the sale. The Commissioner defended it on the ground that a certified letter reasonably calculated to apprise Jones satisfied due process, and the premise is sound as far as it goes: due process does not require that a property owner receive actual notice before the government takes his property.²⁰ The Supreme Court reversed anyway, because its earlier decisions had never asked what the State must do when it learns that its notice has failed. Dusenbery did not address that question, and the Court called the government’s knowledge of the failure a critical fact.²¹ Its answer was that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to give the owner notice before selling his property, if it is practicable to do so.²² The answer fits the general understanding that even certified mail may not suffice when the sender has reason to know the letter did not reach the addressee.²³

The Court reached that answer through the Mullane yardstick, and it illustrated the yardstick with a picture. Suppose the Commissioner’s office prepared a stack of letters, handed them to a postman, and watched him drop them down a storm drain. No one desirous of actually informing the owners would shrug and say “I tried”; the office would send them again. Failing to follow up would be unreasonable even though the letters were reasonably calculated to reach their recipients when handed to the postman. A returned envelope plays the role of the storm drain. It tells the sender that the message reached no one, and a sender who wants the message to land treats that news as a reason to act. The Court drew the conclusion that someone who actually wanted to alert Jones that he was in danger of losing his house would do more when the letter came back unclaimed, and that there was more that reasonably could be done.²⁴

The weighing that Mullane calls for pointed the same way. The State was exerting extraordinary power against a property owner by taking and selling his house, and it was “not too much to insist that the State do a bit more to attempt to let him know about it” when the letter addressed to him came back unclaimed.²⁵ Certified mail had told the State something ordinary mail would not, and a State that receives an indication that its attempt at notice has failed must take additional reasonable steps if they are available.²⁶

Justice Thomas, joined by Justices Scalia and Kennedy, dissented, and Justice Alito took no part, so the vote was 5 to 3.²⁷ The dissent made two linked objections. A method of notice, it argued, is judged ex ante, from the agency’s viewpoint when it sends the notice, and the steps the majority proposed came from information discovered later. And a duty triggered by newly acquired doubt has no natural end point, because each new doubt would require the State to consider further means.²⁸ The dissent would also have let Arkansas assume that the owner had either kept the taxing authority informed of his address, as state law required, or left a caretaker under a duty to warn him,²⁹ and it stressed that constructive notice has historically rested on the obligation of those with an interest in property to keep themselves informed of proceedings that affect it.³⁰

The majority kept the ex ante principle and applied it to the State’s own procedure. Reasonableness under Mullane depends on the particular circumstances,³¹ and here the circumstances included a certified-mail procedure that promptly told the State whether its notice had arrived. Asking what the State did with that information does not abandon ex ante review, because the procedure itself brought the follow-up question into view. The answer to the end-point objection lies in the limits the Court placed on the duty: it arises only when the government is aware that its notice has failed, it reaches only practicable steps, and it demands no extraordinary efforts to discover the owner’s whereabouts.³²

Dusenbery shows why requiring more from the State in Jones leaves the earlier decision standing. There the Government knew that someone at the prison had signed for the inmate’s notice letter, and the Court held the attempt adequate even though the Government could have made notice more likely by requiring the inmate himself to sign. In Jones the notice letter came back to the Commissioner, telling him that his attempt had failed.³³ Both decisions ask the Mullane question of what a person who really wants to notify the party would do. They differ in the information the sender held: a surer method existing somewhere does not trigger a duty to adopt it, but a signal of failure does.³⁴

An exam stem that reports a returned certified letter and a sale anyway invites the answer that Mullane tests the method and not receipt, so the county wins. That answer repeats the error of the Arkansas courts, which treated Dusenbery as settling a question it never addressed. A stem in which nothing comes back and the owner merely says the letter never arrived falls on the Dusenbery side of the line, and the mailing is judged by what it was reasonably calculated to do when sent.

Reasonable Additional Steps

Once a returned letter triggers the duty, the question becomes what the State must do. The Court declined to prescribe a form of service, and it asked only whether reasonable additional steps were open to the State.³⁶ They were. If none had been, a State that did nothing could not be faulted, because the duty reaches only steps that are practicable and never demands extraordinary efforts to find the owner.³⁷

The steps follow from what the returned envelope shows. A letter marked “unclaimed” means either that the owner still lived at the address but never collected it or that the owner had moved. The Court pointed to inexpensive steps that serve under both possibilities: resending by regular mail, posting notice at the property, and addressing mail to “occupant.”³⁸

Resending by regular mail, with no signature required, helps when the owner is out. A signature protects against misdelivery only when someone is home to sign, so for an absent owner the signature requirement can make notice less likely, not more. Regular mail might also reach an owner who has moved, because occupants who ignored a certified-mail slip might write a forwarding address on an ordinary envelope or tell the owner directly.

Posting a notice on the front door, or addressing a letter to the “occupant,” reaches whoever is at the property, owner or not. Occupants have reason to pass the news along, since a change of ownership may affect them too, and that is how Jones learned of the sale: his daughter was served with an unlawful detainer notice and called him. The Court found posting notice on the property a reasonable step.³⁹

Posting is not a cure-all. Greene v. Lindsey found posting on apartment doors inadequate where the process servers knew that such notices were not infrequently removed by children or other tenants before they could have their intended effect.⁴⁰ The settings differ. In Greene the servers knew the method often failed, whereas in Jones a posted notice was an added step after a mailing had already failed.

Publication, by contrast, is not a reasonable follow-up when the State has the owner’s address.⁴¹ Newspaper and posted notices of a tax sale are designed primarily to attract prospective purchasers, and they are unlikely to reach interested persons who do not make special efforts to watch for them.⁴² Where names and addresses are known, the reasons disappear for resorting to means less likely than the mails to apprise the owner.⁴³ The sorting that governed the first mailing governs the follow-up: parties whose names and addresses are known or reasonably ascertainable get the best practical means, and publication is left for those the sender cannot reach.⁴⁴

The Commissioner complained about the burden even of these steps. The Court treated that concern as one better directed to the legislature than to the Court.⁴⁵ Arkansas had also undercut the complaint itself: it already requires personal service on homestead owners when certified mail is returned, and it shifts the cost of notice onto the taxpayer or the purchaser.⁴⁶ The dissent pressed the burden point harder. About 18,000 delinquent parcels are certified in Arkansas each year, so the new rule would make the State locate thousands of owners, and those burdens, the dissent argued, are not compelled by the Due Process Clause.⁴⁷ The majority kept the duty within practicability, measured against the extraordinary power to take and sell a house.⁴⁸

Lower courts apply the same reasoning when the return suggests that the owner has moved. In Linn Farms & Timber Ltd. Partnership v. Union Pacific Railroad Co. (E.D. Ark. 2010), the court held that the Commissioner should have obtained a correct address and resent the notice after a certified letter came back stamped “Not Deliverable As Addressed—Unable To Forward.”⁴⁹

Jones also could not escape the duty by pointing to the owner’s own conduct. The Commissioner argued that the failure of notice was the owner’s fault,⁵⁰ and three versions of the excuse appear in the opinions. First, the owner had a statutory duty to keep a current address on file. A party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional obligation,⁵¹ and the address statute explains why the first certified letter was a reasonable choice without making inaction reasonable once the letter came back. Second, an owner who stops paying taxes is on inquiry notice that the property may be taken. Knowing that taxes are delinquent is not the same as knowing that a sale is pending, and the right to redeem is worth something only to an owner who knows the sale is coming. Third, the owner is presumed to have left a caretaker who would warn him. The dissent would have let Arkansas indulge that assumption,⁵² but the assumption has limits: as an earlier dissent observed, a State may not attribute to each citizen a continuing duty to keep watch over events that happen out of his sight.⁵³ Each excuse points to what the owner should have done before anything went wrong, while the duty at issue arises from what the State learned afterward.

A stem that reports a returned certified letter should therefore be read for what the return revealed and what the State did next. If the State did nothing, or only published notice while holding a usable address, the notice fails, and delinquency, the statutory address duty, and the presumed caretaker supply no defense. If it resent by ordinary mail, posted the property, or addressed mail to the occupant, the duty is discharged. If no practicable step existed, the State cannot be faulted for failing to take one, though a known address and a stamp will almost always supply a step.