In re APPLICATION OF THE COUNTY COLLECTOR for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes and/or Special Assessments for the Years 1991 and Prior Years (Apex Tax Investments, Inc., et al., Appellees, v. Mary Lowe, Deceased, by Patrick T. Murphy, Cook County Public Guardian and Supervised Adm‘r of the Estate of Mary Lowe, Appellant)
No. 97165
Supreme Court of Illinois
April 19, 2007
225 Ill. 2d 208
For the foregoing reasons, the judgment of the appellate court is affirmed in part and reversed in part, the judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded to the circuit court for further proceedings in accordance with the directions set forth in this opinion.
Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded with directions.
Denise Brewer and Deborah L. King, both of Chicago, for appellees.
Mark J. Heyrman, of Chicago, for amici curiae Mental Health Association in Illinois and the Mental Health Project of the University of Chicago Law School‘s Edwin F. Mandel Legal Aid Clinic.
John Barr and Jay Barr, of Decatur, for amicus curiae Illinois Tax Purchasers Association.
Justices Freeman, Fitzgerald, and Garman concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
Justices Karmeier and Burke took no part in the decision.
OPINION
This cause is before us on remand from the United States Supreme Court for further consideration in light of Jones v. Flowers, 547 U.S. 220, 164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). We have allowed additional briefing and oral argument addressing the Supreme Court‘s decision in Jones. We also have permitted the Mental Health Association in Illinois and the Mental Health Project of the University of Chicago Law School‘s Edwin F. Mandel Legal Aid Clinic to file a brief amici curiae on behalf of the Cook County public guardian, as supervised administrator for the estate of Mary Lowe. In addition, we have permitted the Illinois Tax Purchasers Association to file a brief amicus curiae on behalf of Apex Tax Investments, Inc., and its subsequent transferee and claimed beneficial interest holder, John Herndon.
The facts in this case are set forth in the original opinion of this court (In re Application of the County Collector, 217 Ill. 2d 1 (2005)). We repeat those facts in some detail in this opinion, as those facts are relevant to our reconsideration in light of Jones.
BACKGROUND
In 1977, Mary Lowe purchased a single-family home located at 13250 South Riverdale in Chicago. In 1993, Lowe quitclaimed the property to herself and William Austin. Austin died in 1994. Property taxes were paid on the home until 1992, when $110.65 in assessed taxes for the 1991 property tax year went unpaid.
Following a tax sale, the Code provides that, in order to seek a tax deed, the tax purchaser must deliver a notice to the county clerk to be given to the party in whose name the taxes were last assessed.
Also “within 5 months but not less than 3 months prior to the expiration of the redemption period,” the tax purchaser may file a petition in the circuit court seeking an order directing the county clerk to issue a tax deed to the property. See
In this case, the circuit court granted the collector‘s application for judgment and sale. The county collector offered Lowe‘s home for sale and, on March 3, 1993, Apex Tax Investments, Inc. (Apex), purchased the home at the annual Cook County tax sale for $347.61, the amount of the 1991 tax delinquency and fees. Apex did not receive title to the property at that time, but instead received a “certificate of purchase.” See
On October 5, 1995, Apex filed a petition in the circuit court of Cook County for a tax deed to the property. Apex‘s tax petition stated that the redemption period expired by extension on February 21, 1996. Because no redemption occurred by February 21, 1996, Apex‘s petition proceeded to an ex parte hearing on March 18, 1996.
At the March 18, 1996, hearing, Apex‘s attorney testified concerning Apex‘s compliance with the statutory notice provisions of sections 22-10 through 22-25 of the Code. Apex conducted a tract search and learned that the property at issue was owned by Mary Lowe and William Austin. Apex conveyed this information to the Cook County sheriff and the clerk of the circuit court of Cook County. Pursuant to section 22-15 of the Code (
Because the Cook County sheriff could not effect personal service on Austin, Lowe or “occupant,” the sheriff also sent section 22-10 take notices to Austin, Lowe and “occupant” at the property‘s address by certified mail, return receipt requested. The three certified mail notices were returned to the sheriff undelivered, and were filed with the clerk of the circuit court.
The envelopes for the three certified mail notices were admitted into evidence at the hearing on Apex‘s
Pursuant to statute, the clerk of the circuit court of Cook County also sent section 22-10 take notices by certified mail to Lowe, Austin and “occupant.” These notices were returned undelivered. The three certified mail envelopes were postmarked November 8, 1995, and were stamped “return to sender.” The three envelopes contained notations indicating that attempts were made to deliver the notices on November 9, November 15, and November 24, 1995. Apex also provided publication notice to Lowe and Austin by publishing notice in the Chicago Daily Law Bulletin on October 11, October 12, and October 13, 1995.
At the hearing on Apex‘s petition for tax deed, Apex‘s attorney testified that, in attempting to ascertain the whereabouts of Lowe and Austin, the Cook County sheriff personally served a section 22-10 take notice on
Apex‘s agent, Fred Berke, testified at the hearing that he had visited the property and inspected it on behalf of Apex sometime between October 21 and December 21, 1995. When Berke arrived at the home, he knocked on the door and looked into the living room window. Berke did not see any furniture inside the home. In addition, Berke spoke to a next-door neighbor who told Berke that the owner of the property was the “Lowes,” but that no one was living there currently. Berke testified that the home appeared to be uninhabited.
Apex‘s attorney also testified that Apex checked city and suburban phone directories and voter registration records, but was unable to develop any address for William Austin or Mary Lowe other than the subject property address. Apex‘s attorney stated that all regular efforts to locate Lowe and Austin had proven fruitless.
At the close of the hearing on Apex‘s petition for tax deed, the circuit court found that no redemption had been made, that Apex had complied with the notice provisions of the Property Tax Code, and that Apex had exercised “due diligence” in attempting to locate Lowe and Austin. Consequently, on May 20, 1996, the circuit court directed the county clerk to issue Apex a tax deed to the property. The tax deed was issued on May 20, 1996.
Subsequently, on December 6, 1996, Apex entered into an installment contract to sell the property to third-party John Herndon for $10,000. Herndon testified via deposition that the property was in substantial disrepair
On September 5, 1997, two of Mary Lowe‘s sons, Bruce and Mario Lowe, filed a pro se petition for “Restoration of Property Ownership” in the circuit court of Cook County, stating that Mary Lowe had been in and out of various mental facilities for the past 30 years and that Lowe had been hospitalized in a mental-health facility from August 26, 1995, to December 17, 1996. The petition stated that Mary Lowe had been released to Bruce Lowe‘s custody and that Mary currently resided with Bruce in California. The pro se petition alleged that personal service on an incompetent person violates that person‘s right to due process. The petition therefore asked that the court reinstate Mary‘s full rights of ownership in the subject property.
Based upon the allegation that Mary Lowe was mentally disabled, the circuit court on November 1997 appointed the Cook County public guardian to represent her.1 The public guardian then filed a petition, and later an amended petition, pursuant to section 2-1401 of the Code of Civil Procedure (
An evidentiary hearing on the public guardian‘s amended petition to set aside the tax deed was held on February 20, 2002. The circuit court allowed Herndon to participate at the hearing because he had purchased the subject property. Dr. Bernard Rubin testified at the hearing that he had reviewed Lowe‘s mental-health records and concluded that Lowe had suffered from disorganized, chronic schizophrenic disorder. Rubin said that from January 1995 until October 1996, Lowe suffered from a mental illness, was generally incompetent, and would not have been able to understand or respond to legal documents served upon her between January 1995 and October 1996.
Hightower also testified at the evidentiary hearing that she was a mail carrier for the United States Postal Service and that the property at issue was on her route. She wrote “Person is Hospitalized” on the certified letters sent by the sheriff to Lowe and occupant. Hightower also wrote her postal route number, “2719,” and her initials, “JHT,” on the envelopes. At the time she made the notations on the envelopes, Hightower knew that Lowe was in Tinley Park Mental Health Center, but postal regulations did not allow her to note anything more specific than the fact that an addressee was hospitalized. Hightower testified that anyone wanting
On April 9, 2002, the circuit court denied the public guardian‘s amended petition to set aside the tax deed. The appellate court affirmed. No. 1-02-1101 (2003) (unpublished order under Supreme Court Rule 23). This court granted the public guardian‘s petition for leave to appeal and affirmed the circuit and appellate courts.
In affirming, this court noted that relief from an order issuing a tax deed could be had under section 2-1401 of the Code of Civil Procedure (
The public guardian argued that the tax deed issued to Apex should be set aside because there was clear and convincing evidence that Apex had procured the tax deed by fraud or deception. In re Application of the County Collector, 217 Ill. 2d at 26. The public guardian claimed that Apex‘s representation that it had been unable to ascertain Lowe‘s whereabouts despite having conducted
This court rejected the public guardian‘s argument, noting that in the context of tax deed proceedings, fraud is defined as a wrongful intent or an act calculated to deceive. In re Application of the County Collector, 217 Ill. 2d at 23. This court held that the record in the case did not show fraud. Specifically, this court found that:
“The envelopes with Jewel Hightower‘s notations on them were returned by the post office to their sender, the Cook County sheriff. The sheriff submitted the envelopes to the clerk of the circuit court, who then placed the envelopes in the court file, which, by statute, the clerk is required to maintain in tax deed cases. [Citation.] There was nothing unusual or unexpected about the fact that the envelopes were returned, undelivered. Both an agent from Apex and a deputy sheriff from the Cook County sheriff‘s office had visited the property, found it vacant, and had been told by neighbors that the occupants of the home had moved. Further, the notations on the envelopes addressed to Mary Lowe and ‘occupant,’ though legible, cannot reasonably be called prominent. The notations have a line drawn through them and they are partially obscured by the circuit court clerk‘s filing stamps and the post office‘s ‘returned to sender’ stamps. More important, there is no evidence that Apex attempted to conceal the notations or *** alter the envelopes in any way.
On this record, the most that can be said with respect to Apex‘s actions is that Apex simply failed to discover the notations on the envelopes. However, as this court has frequently noted, the failure to uncover a particular fact during the search for a delinquent taxpayer does not, by itself, establish fraud.” In re Application of the County Collector, 217 Ill. 2d at 23-24.
This court also rejected the public guardian‘s claim that the tax deed should be set aside because Lowe had
Finally, this court rejected the public guardian‘s argument that the Code is unconstitutional as applied to all individuals like Lowe, who are hospitalized with a disabling mental illness during the section 22-10 notice period. In re Application of the County Collector, 217 Ill. 2d at 38. We held that the notice procedures set forth in sections 22-10 through 22-25 of the Code embodied all that could be done under existing law to locate and identify a delinquent taxpayer who is hospitalized for mental illness. In re Application of the County Collector, 217 Ill. 2d at 41-42.
The United States Supreme Court subsequently granted the public guardian‘s petition for writ of certiorari, vacated the judgment of this court, and remanded the cause for our further consideration in light of Jones v. Flowers, 547 U.S. 220, 164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). Estate of Lowe v. Apex Tax Investments, Inc., 547 U.S. 1145, 164 L. Ed. 2d 811, 126 S. Ct. 2287 (2006).
ANALYSIS
We begin our analysis on reconsideration with a review of the Jones decision. At issue in Jones was whether the government must take additional reason-
In that case, Gary Jones purchased a home on Bryan Street in Little Rock, Arkansas, in 1967 and lived in the Bryan Street home with his wife until they separated in 1993. Jones then moved into an apartment in Little Rock and his wife remained in the Bryan Street home. Jones continued to pay the mortgage on the Bryan Street home after he moved out, and the mortgage company paid Jones’ property taxes. After the mortgage was paid off in 1997, the property taxes went unpaid and the property was certified as delinquent. Jones, 547 U.S. at 223.
In April 2000, the Commissioner of State Lands mailed a certified letter to Jones at the Bryan Street home notifying Jones of the tax delinquency and of his right to redeem the property. The letter also stated that unless Jones redeemed the property, the property would be subject to a public sale two years later on April 17, 2002. The post office returned the certified letter to the Commissioner marked “unclaimed” because no one was home to sign for the letter and no one retrieved the letter from the post office within the next 15 days. Jones, 547 U.S. at 223-24.
Two years later, the Commissioner published a notice of public sale in the newspaper. No bids were submitted, so the State was permitted to negotiate a private sale of the property. Thereafter, Linda Flowers submitted a purchase offer. Accordingly, the Commissioner mailed another certified letter to Jones at the Bryan Street address notifying Jones that his house would be sold to Flowers if he did not pay his taxes. This letter was returned to the Commissioner marked “unclaimed.” Flowers then purchased the house and, after the 30-day
Jones filed suit in state court against the Commissioner and Flowers alleging that the Commissioner‘s failure to provide notice of the tax sale and of Jones’ right to redeem resulted in the taking of Jones’ property without due process. The trial court granted summary judgment in favor of the Commissioner and Flowers, finding that the state tax sale statute that set forth the notice procedure complied with constitutional due process requirements. The Arkansas Supreme Court affirmed, finding that attempting to provide notice by certified mail satisfied due process under the circumstances. Jones, 547 U.S. at 225.
Before the Supreme Court, the Commissioner argued that due process was satisfied once the state provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing Jones a certified letter. Jones, 547 U.S. at 226. The Supreme Court agreed that it had deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent. Id. However, the Court stated that it had never addressed whether due process required further responsibility when the government becomes aware, prior to the taking, that its attempt at notice failed. Jones, 547 U.S. at 227.
The Court explained that it did not “think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would
The Court explained that there were several reasonable steps the state could have taken when the certified letter to Jones was returned unclaimed. For example, the state could have resent the notice by regular mail so that a signature was not required. Id. In addition, the state could have posted notice on the front door of the house or could have addressed the mail to “occupant.” Jones, 547 U.S. at 235. Further, the Court found that the state‘s attempt to follow up with Jones by publishing notice in the newspaper was not constitutionally adequate under the circumstances of the case because it was possible and practicable to give Jones more adequate warning of the impending tax sale. Jones, 547 U.S. at 237.
The Court rejected Jones’ claim, however, that the Commissioner should have looked for his new address in the Little Rock telephone book and other government records, including income tax rolls. Jones, 547 U.S. at 235-36. The Court stated that an “open-ended search for a new ad-
The Court declined to prescribe the form of service that the state should adopt, concluding that the state could determine how to proceed in response to the Court‘s conclusion that notice was inadequate under the facts of this particular case. Jones, 547 U.S. at 238. Because notice in the case before it was insufficient to satisfy due process, the Supreme Court reversed the Arkansas state courts, holding that “when mailed notice of a tax sale is returned unclaimed, the 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.” Jones, 547 U.S. at 225.
In reconsidering this case in light of Jones, we first note that this case is factually distinguishable from Jones. The notice provided pursuant to the Illinois Property Tax Code is far more comprehensive than the notice provided for in the Arkansas statute at issue in Jones. The Arkansas statute required the state to send only one notice, by certified mail, to a property owner notifying him of the government‘s intent to sell his property for delinquent taxes. In contrast, the Illinois statute provides that the county collector must provide notice to a delinquent taxpayer by certified or registered mail before obtaining a judgment order from the circuit court authorizing the sale of the property.
Jones is further distinguishable because the issue in that case concerned the notice a state must provide to a property owner before taking his property. The Jones court characterized the issue before it as “whether the Due Process Clause requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered,” and held that “when mailed notice of a tax sale is returned unclaimed, the 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.” (Emphases added.) Jones, 547 U.S. at 225. In holding that the state must take additional reasonable steps to attempt to provide notice, the Supreme Court stated that it did “not think that a person who actually desired to inform a real property owner of an impending tax sale of a house he owns would do nothing when a certified letter sent to the owner is returned unclaimed.” (Emphasis added.) Jones, 547 U.S. at 229.
In this case, in contrast, there is no issue concerning notice of the tax sale. As we observed in our original opinion:
“In the case at bar, it is undisputed that Mary Lowe was mentally incapacitated from January 1995 through October 1996. However, the tax sale in this case, and the time periods for the procedures noted above, occurred in 1993. The circuit court made no finding regarding the competency, or incompetency, of Mary Lowe in 1993. Moreover,
while Dr. Rubin testified as to Lowe‘s incapacity in 1995 and 1996, he did not testify with respect to her condition in 1993. Thus, it appears that, prior to the deprivation of her property, and at a time when there is no finding of record that she was incompetent, Lowe was given notice of the application for judgment and order of tax sale, had an opportunity to object to the application for judgment, was given notice that the tax sale had occurred, and was given notice that she had the right to redeem her property.” (Emphasis added.) In re Application of the County Collector, 217 Ill. 2d at 31.
Because there is no issue in this case concerning whether Lowe was given notice of the tax sale, we find that the due process concerns in Jones are not at issue in this case and, therefore, that Jones does not require this court to reverse its prior opinion.
The public guardian argues, however, that because the lack of notice in this case concerns the hearing at which Lowe actually lost the title to her home, Lowe was denied due process even if she may have received some earlier notice. The public guardian contends that the notice given to Lowe in this case was deficient because Apex failed to follow up on specific information that would have led to the discovery of Lowe‘s whereabouts and, even absent that specific information, Apex failed to make a diligent inquiry into finding Lowe.
The public guardian notes that in Jones, the certified mail notices were returned marked “unclaimed.” In this case, not only were the section 22-10 certified mail notices to Lowe and “occupant” returned unclaimed, but the envelopes also contained a notation from the letter carrier that “Person is Hospitalized” along with the letter carrier‘s initials and postal route number. The public guardian argues that Jones directly addressed this type of situation and held that due process requires a party to follow up on information provided in response to its chosen method of service.
The public guardian maintains that Hightower‘s
notation on the envelopes in this case put Apex on notice that Lowe was not at the property where notice was sent, was not receiving mail at that address, and was hospitalized. In addition, the notation on the envelopes indicated that Apex could follow up with Hightower to find out where Lowe was hospitalized in order to provide Lowe with actual notice. Further, had Apex followed up with Hightower, Apex would have learned that Lowe was hospitalized in a state mental institution and that she was incompetent. The public guardian asserts that Apex had a constitutional duty under Jones to inspect the returned envelopes and take reasonable steps in response to any information that it discovered as a result.
Even if we were to accept the public guardian‘s argument that Jones applies in this case to the
As discussed, the Supreme Court in Jones observed that the state did nothing for two years after its notice to Jones was returned unclaimed. The Supreme Court held that the state could have taken additional reasonable steps to notify Jones that he was about to lose his property, such as resending the notice by regular mail, posting notice on the front door, or addressing the mail to “occupant.”
In this case, Apex did take numerous additional steps to notify Lowe that her property had been sold and that a petition for tax deed had been filed. Apex conducted a tract search of the property to determine the owner of the property. The Cook County sheriff attempted to personally serve Lowe, Austin and “occupant,” but
Apex also served the
It is clear that the steps taken by Apex exceeded those suggested by the Jones Court as reasonable. In fact, the Jones Court stated that the state was not required to search for Jones’ new address in the Little Rock phone book or in other government records, explaining that “[a]n open-ended search for a new address—especially when the State obligates the taxpayer to keep his address updated with the tax collector [citation]—imposes burdens on the State significantly greater than the several relatively easy options outlined above.” Jones, 547 U.S. at 236, 164 L. Ed. 2d at 432, 126 S. Ct. at 1719.
In light of the foregoing, it is clear in this case that Apex‘s attempts at notice in this case were sufficient to satisfy due process under Jones. We are not convinced that, under the circumstances of this case, Apex was required to take additional steps in response to Hightower‘s notations on the certified mail envelopes. We cannot consider the envelopes containing Hightower‘s notations in isolation, but instead must consider the envelopes in light of all the facts in this case.
Prior to receiving the envelope with the notation that
Moreover, we are not as confident as the public guardian that any further inquiry would have revealed that Lowe was hospitalized at the Tinley Park Mental Health Center. As the appellate court found:
“[T]he notation ‘person is hospitalized’ does not necessarily mean the individual is hospitalized in a mental health center. As the trial court indicated, individuals are hospitalized for numerous reasons. Hospitalization at a mental health center would not first come to mind when learning that a ‘person is hospitalized.’ ” No. 1-02-1101 (unpublished order under
Supreme Court Rule 23 ).
In addition, as noted in our prior opinion, section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act (
Accordingly, we do not agree with the public guardian that, had Apex followed up on Hightower‘s notation,
The public guardian next argues that, even absent the information provided by Hightower, Apex failed to undertake an inquiry expected of one seeking to inform Lowe of the proceedings against her. The public guardian asserts that Apex‘s agent, Berke, could have questioned Lowe‘s neighbor further concerning her whereabouts or could have questioned other neighbors for information on Lowe. Berke also could have posted information on the property, which likely would have elicited further information.
Again, given the information available to Berke, we do not agree that Jones would require Berke to conduct an open-ended search into Lowe‘s whereabouts. The information available to Berke was that the property was vacant and that Lowe had moved. Further, Apex did check city and suburban phone directories and voter registration records in order to find another address for Lowe and Austin, but was unable to find an address other than the subject property address. Under the circumstances, we cannot say that Berke was required to conduct further investigation or that Lowe was constitutionally entitled to a more diligent inquiry.
Finally, we note that the public guardian argues that this court erred in its prior opinion in rejecting the public guardian‘s challenge to the adequacy of Apex‘s diligent inquiry, without addressing the merits of that argument, on the basis that a circuit court‘s diligent-inquiry finding
We decline to address the public guardian‘s argument concerning
After considering this case in light of the United States Supreme Court‘s decision in Jones, we find that this case does not present facts establishing that Lowe was denied her due process right under Jones to adequate notice prior to the deprivation of her property. For that reason, we adhere to our former disposition in this cause and affirm the judgment of the appellate court.
Appellate court judgment affirmed.
JUSTICES KARMEIER and BURKE took no part in the consideration or decision of this case.
JUSTICE KILBRIDE, dissenting:
I respectfully dissent from the majority opinion because I disagree with its interpretation and application of the Supreme Court‘s opinion in Jones v. Flowers, 547 U.S. 220, 164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). Jones
As the majority correctly notes (225 Ill. 2d at 225-26), the facts in Jones differ from those in this appeal. Those differences, however, only serve to underscore the need for heightened due process protections for property owners like Lowe, who face imminent danger of forfeiting all interest in their homes without an opportunity to object. In Jones, the Court addressed the sufficiency of Arkansas’ notice requirements prior to a tax sale. Jones, 547 U.S. at 226, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. 225 Ill. 2d at 226. Here, the issue involves this state‘s
Furthermore, the property owner in Jones was mentally competent and simply neglected to ensure that the taxes on the property were paid and that the mailing address in the tax records was updated. Lowe, on the
Illinois’
There is, however, one significant factual similarity between this case and Jones. In both instances, after it became apparent that the property owner had not received the statutory notice, the party obliged to provide
More specifically, the Jones Court repeatedly noted the principle that due process mandates notice “‘such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.‘” (Emphasis added.) Jones, 547 U.S. at 229, 230, 238, 240-41, 164 L. Ed. 2d at 427, 428, 433, 435, 126 S. Ct. at 1715, 1716, 1721, 1722, quoting Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657. Here, it is difficult to imagine that someone “desirous of actually informing” Lowe of the impending loss of her property would find it unreasonable or “impracticable” to call the post office to inquire about the letter carrier‘s notation on the returned certified mail envelope addressed to Lowe stating that she was “hospitalized.” While this standard conflicts with the inherently adverse interests of tax purchasers, who rationally wish to obtain their tax deeds with the least possible effort and expense, constitutional due process standards do not exist for the benefit of the party intent on taking possession of another‘s property. See Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. See also Jones, 547 U.S. at 239, 164 L. Ed. 2d at 433-34, 126 S. Ct. at 1721 (noting that the state has far less incentive to provide proper notice to property owners before taking actions adverse to them than it has to secure the revenue obtained from the taking). Fundamental due process safeguards are designed to provide property owners with the right to be heard. Due process entails the right to present objections and not be unwittingly stripped of property. This right has little meaning if the owner is not informed of the pending action and given
Moreover, while due process does not demand actual notice to the property owner (Dusenbery v. United States, 534 U.S. 161, 170, 151 L. Ed. 2d 597, 606, 122 S. Ct. 694, 701 (2002)), the notice provided must be “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” (emphasis added) (Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657). Here, the circumstances required Apex to follow up on the letter carrier‘s notation that Lowe was hospitalized. Only by following up on that information would the notice provided be “reasonably calculated” to afford Lowe notice “under all the circumstances” known to Apex at the time. The arguably conflicting information suggesting that Lowe had moved (see 225 Ill. 2d at 229-30) did not negate the relevance of the additional information on the envelope to Apex‘s duty to provide notice sufficient to satisfy due process. The duty to provide due process required the notice given to be “reasonably calculated, under all the circumstances, to apprise” Lowe of the action. (Emphasis added.) Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. See 225 Ill. 2d at 228.
Similarly, ignoring information stating that the property owner is hospitalized does not comply with Apex‘s statutory duty under
Nor does the mere possibility that Apex‘s inquiries at the post office may have been unsuccessful in obtaining information about Lowe‘s location or mental-health status fulfill its due process duty to at least attempt to provide notice based on all available information. Jones, 547 U.S. at 226, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713-14 (citing Dusenbery, 534 U.S. at 170, 151 L. Ed. 2d at 606, 122 S. Ct. at 701, and Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657). See 225 Ill. 2d at 229-30. Surely due process does not allow the selective acknowledgment of information minimizing the tax purchaser‘s duty of notification and the complete disregard of other available information requiring the “additional reasonable step[]” of simply inquiring about the notation at the post office. See Jones, 547 U.S. at 225, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. Due process is intended, after all, to provide property owners with a reasonable opportunity to protect their interests. See Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. The goal of due process is not to minimize the notification burden placed on a tax purchaser.
Finally, requiring Apex to inquire about the letter carrier‘s notation at the post office does not constitute the type of “open-ended search” rejected by the Jones Court. Jones, 547 U.S. at 236, 164 L. Ed. 2d at 432, 126 S. Ct. at 1719. Apex would initially be required to take the limited step of contacting the post office to inquire about the notation on the returned certified mail envelope indicating that Lowe was hospitalized. Apex may or may not be required to take other reasonable and practicable steps to follow up on any subsequent findings. Jones, 547 U.S. at 227, 164 L. Ed. 2d at 426, 126 S. Ct. at 1714
Thus, because “[u]nder the circumstances presented here, additional reasonable steps were available” to Apex, I believe it failed to satisfy its due process obligations. Jones, 547 U.S. at 225, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. I would reverse the appellate court judgment and remand for further proceedings. Therefore, I respectfully dissent from the majority opinion.
(No. 102413.—
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIE HAMPTON, Appellee.
Opinion filed April 19, 2007.