Jones v. Flowers: an Essay on a Unified Theory of Procedural Due Process

• Publication year: 2022

40 Creighton L. Rev. 343. JONES V. FLOWERS: AN ESSAY ON A UNIFIED THEORY OF PROCEDURAL DUE PROCESS

Creighton Law Review

Vol. 40

PATRICK J. BORCHERS

When the history of the United States Supreme Court in the early twenty-first century is written, Jones v. Flowers(fn1) will not be celebrated as one of the Court's great achievements. The stakes were small as Supreme Court cases go and its direct precedential relevance limited. But latent in the Court's reasoning is a theme that if fully developed could bring all of procedural due process under one banner to the benefit of constitutional jurisprudence and the practical administration of civil cases.

The whole matter began humbly enough as Supreme Court cases often do. In 1967 Gary Jones bought a house in Little Rock, Arkansas.(fn2) He lived there a long time with his wife.(fn3) In 1993 they separated, and Jones moved out to an apartment but continued to pay the mortgage on the house.(fn4) Of course, as long as he had a mortgage, he had an escrow account that paid the property taxes.(fn5) But after he paid off the mortgage in 1997, there was no escrow account to pay the taxes and nobody did.(fn6) Maybe Jones forgot or did not know he had to pay the taxes; the record does not say.

After three years of not getting tax payments, the Commissioner of State Lands attempted to notify Jones of the delinquency and what he could do about it. The Commissioner did so by sending a certified letter to the address of the house, which seemed like a sensible enough course of action and was required by the relevant statutes.(fn7) Nobody at the address signed for the letter and nobody appeared at the Post Office to claim it within fifteen days.(fn8) So it was returned unopened to the Commissioner.(fn9)

Two years after the letter was returned to sender, the Commissioner placed a notice of public sale of the property in the local pa-per.(fn10) Unsurprisingly, Jones did not see it, and the sale went forward with no bidders.(fn11) The Commissioner then negotiated a private sale to Linda Flowers.(fn12) The Commissioner then sent another certified letter to Jones - this one informing him of his right to redeem the property - at the address of the house, but it too went unclaimed.(fn13) Flowers then purchased the house for just over $20,000, which was about $60,000 under its market value.(fn14) Flowers then brought a suit to evict the occupants of the house, including Jones's daughter, who was actually served with process in the eviction action.(fn15) Realizing that something serious was afoot, the daughter then notified Jones.(fn16) Jones brought suit in Arkansas state court to set aside the sale on the grounds that the efforts at notifying him did not comport with the constitutional requirement of due process.(fn17)

Students of civil procedure can hardly avoid seeing the ironic parallels between Jones and the almost 140-year-old decision in Pennoyer v. Neff.(fn18) In Pennoyer, the case most often thought to link due process and jurisdiction,(fn19) Marcus Neff (played by Gary Jones in this case) discovered his land sold to Sylvester Pennoyer (played by Linda Flowers in this case) to pay off a debt that was only a small fraction of the value of the land.(fn20) Like the victorious Neff of several generations ago, Jones too would win on due process grounds. Moreover, as I shall argue below, the Jones case could perhaps prove to be a significant link in the chain that binds due process back together after it began an unraveling in the wake of Pennoyer.

The key question in Jones was whether the efforts to notify him of the sale met the constitutional standard articulated in Mullane v. Central Hanover Trust Co.(fn21) In Mullane, the seminal notice case, the Court held that the constitutional minimum is to provide "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."(fn22) While this flexible formulation might have been some comfort to Jones, the specific application of it in the Mullane case seemed to create a safe harbor rule for notification by mail.(fn23) Because of the reasonable certainty of accurate delivery of first-class mail, the Mullane Court held that its use satisfies due process assuming that the interested party's address can be learned relatively easily.(fn24)

That formulation might have been sufficient to resolve the case against Jones, because the Commissioner made two separate efforts to notify him by mail. Indeed, that was essentially the tack taken by the Jones dissent.(fn25) But the nagging problem was that the letters had not actually notified Jones, and the Commissioner knew or should have known this as they were twice returned undelivered.(fn26) While it would be impracticable to have a due process standard that required certain success of notification, the majority was troubled by a scheme that - at least in Jones's case - ended in certain failure.(fn27)

The Court colorfully made this point by analogizing the attempts at notification in Jones to the Commissioner preparing a stack of notices and then seeing "the departing postman accidentally drop[] the letters down the storm drain."(fn28) As the majority pointed out, nobody who actually wanted the interested party to find out about the action "would simply shrug his shoulders as the letters disappeared and say 'I tried.'"(fn29) In fact, a person actually desirous of giving notice would surely follow up. And "especially . . . when . . . the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house."(fn30) In a case such as this, in which the Commissioner had "unique" information that Jones had not been notified, the majority concluded that reasonable...