Do Object Lessons Work? A Shift From the High Court.

In a number of speeches and in a number of pieces I've written, I've talked about instances in which the High Court does an abupt shift, and how this is the nature of the landmark decision. Specifically, I talked about this within the context of Kelo and the legal construct of stare decisis - basically, how it would have been landmark for the court to find on behalf of Susette Kelo and undo 70-odd years of eminent domain precedent.

With the changes on the High Court, I'd been waiting anxiously for the first property rights decisions to trickle out. There was some question as to where Chief Justice Roberts' philosopies on property rights might lie, though much less doubt when it comes to Justice Alito.

And so here we are with one such decision - this one having to do with the "notice" aspects of the government's requirements under "due process". It gives us an opportunity to see just how well "object lessons" like the "Lost Liberty Hotel" project have fared when it comes to putting public pressure on the Supreme Court, too.

When taking private property, government has to do three things essentially: the taking has to be for a legitimate public use, there has to be some form of due process (generally, government actually letting the property owner know that his property is being taken and giving him an opportunity to make a plea to the government not to take his property), and just compensation has to be paid to the property owner.

A lot of times, people focus on the first and third aspects - whether the use is legitimately public (cf, the Kelo case) or whether the compensation is just. But the due process component is how a great many of these cases are litigated - whether or not the substantive or procedural due process rights of the property owner have been adequately protected or if they've been violated.

One of the instances I've talked about is the old New York system wherein they wouldn't have to give actual notice to the property owner that the government was considering taking the property (or actually taking it). All they would need do is put a notice in the paper for two consecutive weeks, and the property owner would have to be scanning the paper in order to keep abreast of his own due process rights.

This, obviously, led to a great many instances where a property owner in New York would come home to find the deed done, with the government shaking its head and saying, "What, you didn't read the tiny notice in the back of the classified ads two weeks ago?"

This was upheld, too, by an earlier court. In fact, it took several attempts by the New York State legislature to change this, Governor Pataki having vetoed the first try.

It is this issue of notice that came before the High Court in this instance. In the past, the Supreme Court has given government quite a bit of a pass when it comes to protecting the due process rights of people whose property is being targeted - but today's decision in Jones v. Flowers reins in those expansive powers sharply.

The facts of the case are simple: Mr. Jones paid the mortgage on his wife's home after they separated and he moved away. The property taxes were paid out of an escrow fund through the mortgage. Once the mortgage was paid off and Mr. Jones ceased being involved financially with the property, nobody was paying the taxes on it.

The state of Arkansas sent a certified letter to Mr. Jones, but since he didn't live at that home, he never got the notice, and it was never picked up. The state got back the letter marked "unclaimed". Then they published a notice in the newspaper, which Mr. Jones never saw. They entered into a negotiation with Flowers, who bought the property... even though the ex-Mrs. Jones and her daughter were still living there.

It was Jones' daughter who informed him that this was happening, and thus the litigation began.

Though the lower courts found the State's behavior just and reasonable, and well-within their responsibilities as respecting the due process rights of Mr. Jones, the High Court did not. In a departure from precedent, Chief Justice Roberts, writing for the Majority, said:

"When mailed notice of a tax sale is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so."

This is good. What's more, Roberts said that if the state knows that their attempts to notify the property owner were unsuccessful, then they are specifically informed that their responsibilities under due process have not been satisfied.

While the majority's decision can cut both ways (they still say that "actual" notice isn't required, and that the state can hedge their bets by not sending out registered letter), it's always nice to see a state's ability to take private propery slapped in some way, shape, or form.

What's also interesting is who joined Roberts in the majority here. It wasn't the usual suspects. Instead, it was Stevens, Souter, Ginsberg and Breyer who joined in (and you all doubted me when I said that object lessons actually brought about results). Thomas, Scalia and Kennedy dissented on this, focusing on the reliance on precedent.

Clearly we need to do some work there.

The whole opinion can be found at:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1477

- Andrew Langer