The Supreme Court handed down an interesting case today, Jones v. Flowers. The question in the case was how much effort the state of Arkansas needed to take to notify an absent property owner before selling off the property for failure to pay property taxes, pursuant to the framework of Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950).
In a 5-3 decision by the Chief Justice joined by Stevens, Souter, Breyer, and Ginsburg, the Court concluded that mailing two certified letters to the home (returned unclaimed) and publishing a notice in the newspaper wasn’t enough. Justice Thomas dissented, joined by Scalia and Kennedy, concluding that these steps were enough based on prior precedents. Alito didn’t participate.
It’s a narrow dispute on the whole, and a matter of fairly close line-drawing. It’s also one with interesting ideological tensions: to the extent the close line-drawing could be influenced by a Justice’s broader commitments, there were different commitments in play that could help explain the different votes. Still, it was interesting to see the Chief Justice align himself with the left-of-center Justices on a constitutional issue.
I litigated this issue under Michigan state law once. It’s rather surprising to me that it’s not considered primarily a state issue, although obviously a state couldn’t dispense with due process requirements altogether.
It’s interesting to contrast this with Kelo,, in which the Court acknowledged that property rights are traditionally a state law issue (one could argue THE state law issue), and therefore declined to engage in what would have been some tricky line-drawing.
I may be the only defender of Kelo in the blogosphere, but it does seem to me that very little is served by the Supreme Court inserting itself into these fact-based situations, given that the subject area is one that has traditionally been left to the states.
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If the Supreme Court would incorporate the Seventh Amendment into the 14th, then a case like Jones v. Flowers might be affected. The Seventh Amendment guarantees a jury trial in civil cases when the amount in controversy is over twenty dollars. If the absent property owner had a right to a jury trial, it seems like the state would be violating that right by not making all reasonable attempts to avoid a trial in absentia. This seems like a much more plausible rationale than the one provided by the SCOTUS majority in this case: i.e., the Court is entitled under the Due Process Clause to legislate all of our country’s procedural rules.