High Court Rules Against State’s Seizure of House

Times Staff Writer

The Supreme Court, led by Chief Justice John G. Roberts Jr., ruled Wednesday that the government must make extra efforts to notify a homeowner before it sells off his property for unpaid taxes.

The Constitution says the state may not take away a person’s property “without due process of law,” and Roberts said that meant officials “must take additional reasonable steps” to contact an owner before taking his property.

The ruling in an Arkansas dispute applies to all levels of government, from the Internal Revenue Service to local tax collectors.


The chief justice split with the court’s most conservative justices and with Bush administration lawyers, who said sending a letter was all that was required of the government, even if it wasn’t delivered.

The 5-3 decision is a victory for an Arkansas man who lost his house several years after he had paid off the mortgage. When his former wife failed to pay the property taxes, the state moved to seize and sell the house.

Officials made no effort to contact the homeowner other than to send a certified letter that was returned undelivered.

In response to the news that the letter was returned, “the state did nothing,” Roberts said. They did not call the house, post a notice on the property or send a person to speak to the occupants, he said. They simply put a notice in the local newspaper and then sold the house at auction -- for one-fourth of its value.

Gary Jones, the homeowner, lived in a Little Rock, Ark., apartment and first learned of the unpaid taxes and the sale of his house when his daughter called to say she was being evicted. Jones sued the state, but lost in the Arkansas courts. He then appealed his case to the Supreme Court, contending the state’s action was unconstitutional.

Roberts joined with the court’s four liberal justices in voting to reverse the state’s decision.

“Mr. Jones should have been more diligent with respect to his property -- no question,” the chief justice said. “But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.

“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,” he said. “The same cannot be said for the state’s efforts to ensure that its citizens received proper notice before the state takes action against them. In this case, the state is exerting extraordinary power against a property owner -- taking and selling a house he owns. It is not too much to insist that the state do a bit more to attempt to let him know about it.”

Justice Clarence Thomas dissented sharply, saying the decision could force officials to contact “thousands of delinquent property owners.” The house sale in Arkansas was “caused by the property’s owner’s own failure to be a prudent ward of his interests,” Thomas wrote. “The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws.”

Justices Antonin Scalia and Anthony M. Kennedy joined him in dissent.

Justice Samuel A. Alito Jr. did not participate because the case, Jones vs. Flowers, was argued before he was confirmed to the court by the Senate.

The Bush administration joined the case on the side of Arkansas. “Due process is satisfied when notice of an upcoming tax sale is sent by certified mail,” said U.S. Solicitor General Paul D. Clement.

Many states, including California, require officials to actually notify the occupants of a house before it is sold for unpaid taxes, Roberts noted. The Constitution does not require the government to go that far in all instances, but officials must take reasonable and practical steps to notify the owners, he said. For example, posting a notice on the property would have alerted the occupants, he said.

Because the ruling interprets the Constitution, it applies in all states and at all levels of government.

“This decision will help citizens who face a loss of property in different contexts -- whether for delinquent taxes or a drug forfeiture, for example,” said Michael Kirkpatrick, a lawyer for Public Citizen in Washington, who represented Jones in the high court. He said the title for the home should now revert to Jones.

“I think this decision shows the chief justice to be a practical person and a realist. This is nothing extraordinary. It just says you should post a notice on the property or make an effort to contact the occupants before you sell the house,” Kirkpatrick said.

The opinion by Roberts was the second this year in which he expressed frustration with a bureaucratic response to a serious concern. In February, he rejected the administration’s contention that a small religious group could not import a hallucinogenic tea that it used in rituals.

“The government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions,” he wrote then.

So too in the case of the Arkansas homeowner, he said: Officials cannot say they did all that was necessary when they sent a letter that went unread. “There was more that reasonably could be done,” Roberts said.