In The

Supreme Court of the United States




Decided June 22, 1983

Justice O’Connor, Dissenting

Topic: Due Process*Court vote: 6–3
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Joining O'Connor opinion: Justice POWELL Justice POWELL Justice REHNQUIST Justice REHNQUIST
Citation: 462 U.S. 791 Docket: 82–11Audio: Listen to this case's oral arguments at Oyez

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Today, the Court departs significantly from its prior decisions and holds that, before the State conducts any proceeding that will affect the legally protected property interests of any party, the State must provide notice to that party by means certain to ensure actual notice as long as the party's identity and location are "reasonably ascertainable." Ante at 462 U. S. 800. Applying this novel and unjustified principle to the present case, the Court decides that the mortgagee involved deserved more than the notice by publication and posting that were provided. I dissent because the Court's approach is unwarranted both as a general rule and as the rule of this case.


In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 314 (1950), the Court established that

[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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.

We emphasized that notice is constitutionally adequate when "the practicalities and peculiarities of the case... are reasonably met," id. at 339 U. S. 314 -315. See also Walker v. City of Hutchinson, 352 U. S. 112, 352 U. S. 115 (1956); Schroeder v. New York City, 371 U. S. 208, 371 U. S. 211 -212 (1962); Greene v. Lindsey, 456 U. S. 444, 456 U. S. 449 -450 (1982). The key focus is the "reasonableness" of the means chosen by the State. Mullane, 339 U.S. at 339 U. S. 315. Whether a particular method of notice is reasonable depends on the outcome of the balance between the "interest of the State" and "the individual interest sought to be protected by the Fourteenth Amendment." Id. at 339 U. S. 314. Of course, "[i]t is not our responsibility to prescribe the form of service that the [State] should adopt." Greene, supra, at 456 U. S. 455, n. 9. It is the primary responsibility of the State to strike this balance, and we will upset this process only when the State strikes the balance in an irrational manner.

From Mullane on, the Court has adamantly refused to commit

itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet.

339 U.S. at 339 U. S. 314. Indeed, we have recognized

the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions.

Walker, supra, at 352 U. S. 115 (emphasis added). Our approach in these cases has always reflected the general principle that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 367 U. S. 895 (1961). See also Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 334 -335 (1976).


Although the Court purports to apply these settled principles in this case, its decision today is squarely at odds with the balancing approach that we have developed. The Court now holds that, whenever a party has a legally protected property interest,

[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests... if [the party's] name and address are reasonably ascertainable.

Ante at 462 U. S. 800. Without knowing what state and individual interests will be at stake in future cases, the Court espouses a general principle ostensibly applicable whenever any legally protected property interest may be adversely affected. This is a flat rejection of the view that no "formula" can be devised that adequately evaluates the constitutionality of a procedure created by a State to provide notice in a certain class of cases. Despite the fact that Mullane itself accepted that constructive notice satisfied the dictates of due process in certain circumstances, [ Footnote 2/1 ] the Court, citing Mullane, now holds that constructive notice can never suffice whenever there is a legally protected property interest at stake.

In seeking to justify this broad rule, the Court holds that, although a party's inability to safeguard its interests may result in imposing greater notice burdens on the State, the fact that a party may be more able "to safeguard its interests does not relieve the State of its constitutional obligation." Ante at 462 U. S. 799. Apart from ignoring the fact that it is the totality of circumstances that determines the sufficiency of notice, the Court also neglects to consider that the constitutional obligation imposed upon the State may itself be defined by the party's ability to protect its interest. As recently as last Term, the Court held that the focus of the due process inquiry has always been the effect of a notice procedure on "a particular class of cases." Greene, supra, at 451 (emphasis added). In fashioning a broad rule for "the least sophisticated creditor," ante at 456 U. S. 799, the Court ignores the well-settled principle that

procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.

Mathews v. Eldridge, supra, at 424 U. S. 344 ; see also Califano v. Yamasaki, 442 U. S. 682, 442 U. S. 696 (1979). If the members of a particular class generally possess the ability to safeguard their interests, then this fact must be taken into account when we consider the "totality of circumstances," as required by Mullane. Indeed, the criterion established by Mullane " is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.'" 339 U.S. at 339 U. S. 315 (quoting American Land Co. v. Zeiss, 219 U. S. 47, 219 U. S. 67 (1911)).

The Court also suggests that its broad rule has really been the law ever since Mullane. See ante at 462 U. S. 796 -797, n. 3. The Court reasons that, before Mullane, the characterization of proceedings as in personam or in rem was relevant to determining whether the notice given was constitutionally sufficient, [ Footnote 2/2 ] and that, once Mullane held that the "power of the State to resort to constructive service" no longer depended upon the "historic antithesis" of in rem and in personam proceedings, 339 U.S. at 339 U. S. 312 -313, constructive notice became insufficient as to all proceedings.

The plain language of Mullane is clear that the Court expressly refused to reject constructive notice as per se insufficient. See id. at 339 U. S. 312 -314. Moreover, the Court errs in thinking that the only justification for constructive notice is the distinction between types of proceedings. See ante at 462 U. S. 796 -797, n. 3. The historical justification for constructive notice was that those with an interest in property were under an obligation to act reasonably in keeping themselves informed of proceedings that affected that property. See, e.g., North Laramie Land Co. v. Hoffman, 268 U. S. 276, 268 U. S. 283 (1925); Ballard v. Hunter, 204 U. S. 241, 204 U. S. 262 (1907). As discussed in 462 U. S. Mullane expressly acknowledged, and did not reject, the continued vitality of the notion that property owners had some burden to protect their property. See 339 U.S. at 339 U. S. 316.


The Court also holds that the condition for receiving notice under its new approach is that the name and address of the party must be "reasonably ascertainable." In applying this requirement to the mortgagee in this case, the Court holds that the State must exercise "reasonably diligent efforts" in determining the address of the mortgagee, ante at 462 U. S. 798, n. 4, and suggests that the State is required to make some effort "to discover the identity and whereabouts of a mortgagee whose identity is not in the public record." Ante at 462 U. S. 799, n. 4. Again, the Court departs from our prior cases. In all of the cases relied on by the Court in its analysis, the State either actually knew the identity or incapacity of the party seeking notice or that identity was "very easily ascertainable." Schroeder, 371 U.S. at 371 U. S. 212 -213. See also Mullane, 339 U.S. at 339 U. S. 318 ; Covey v. Town of Somers, 351 U. S. 141, 351 U. S. 146 (1956); Walker, 352 U.S. at 352 U. S. 116 ; Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 417 U. S. 175 (1974). [ Footnote 2/3 ] Under the Court's decision today, it is not clear how far the State must go in providing for reasonable efforts to ascertain the name and address of an affected party. Indeed, despite the fact that the recorded mortgage failed to include the appellant's address, see ante at 462 U. S. 798 -799, n. 4, the Court concludes that its whereabouts were "reasonably identifiable." Ante at 462 U. S. 798. This uncertainty becomes particularly ominous in the light of the fact that the duty to ascertain identity and location, and to notify by mail or other similar means, exists whenever any legally protected interest is implicated.


Once the Court effectively rejects Mullane and its progeny by accepting a per se rule against constructive notice, it applies its rule and holds that the mortgagee in this case must receive personal service or mailed notice because it has a legally protected interest at stake, and because the mortgage was publicly recorded. See ante at 462 U. S. 798. If the Court had observed its prior decisions and engaged in the balancing required by Mullane, it would have reached the opposite result.

It cannot be doubted that the State has a vital interest in the collection of its tax revenues in whatever reasonable manner that it chooses:

In authorizing the proceedings to enforce the payment of the taxes upon lands sold to a purchaser at tax sale, the State is in exercise of its sovereign power to raise revenue essential to carry on the affairs of state and the due administration of the laws.... The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.

Leigh v. Green, 193 U. S. 79, 193 U. S. 89 (1904) (quoting Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 134 U. S. 239 (1890)). The State has decided to accommodate its vital interest in this respect through the sale of real property on which payments of property taxes have been delinquent for a certain period of time. [ Footnote 2/4 ]

The State has an equally strong interest in avoiding the burden imposed by the requirement that it must exercise "reasonable" efforts to ascertain the identity and location of any party with a legally protected interest. In the instant case, that burden is not limited to mailing notice. Rather, the State must have someone check the records and ascertain with respect to each delinquent taxpayer whether there is a mortgagee, perhaps whether the mortgage has been paid off, and whether there is a dependable address.

Against these vital interests of the State, we must weigh the interest possessed by the relevant class -in this case, mortgagees. [ Footnote 2/5 ] Contrary to the Court's approach today, this interest may not be evaluated simply by reference to the fact that we have frequently found constructive notice to be inadequate since Mullane. Rather, such interest "must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co., 268 U.S. at 268 U. S. 283.

Chief Justice Marshall wrote long ago that

it is the part of common prudence for all those who have any interest in [property], to guard that interest by persons who are in a situation to protect it.

The Mary, 9 Cranch, 126, 13 U. S. 144 (1815). We have never rejected this principle, and, indeed, we held in Mullane that "[a] state may indulge" the assumption that a property owner "usually arranges means to learn of any direct attack upon his possessory or proprietary rights." 339 U.S. at 339 U. S. 316. When we have found constructive notice to be inadequate, it has always been where an owner of property is, for all purposes, unable to protect his interest because there is no practical way for him to learn of state action that threatens to affect his property interest. In each case, the adverse action was one that was completely unexpected by the owner, and the owner would become aware of the action only by the fortuitous occasion of reading

an advertisement in small type inserted in the back pages of a newspaper [that may] not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention.

Mullane, supra, at 339 U. S. 315. In each case, the individuals had no reason to expect that their property interests were being affected.

This is not the case as far as tax sales and mortgagees are concerned. Unlike condemnation or an unexpected accounting, the assessment of taxes occurs with regularity and predictability, and the state action in this case cannot reasonably be characterized as unexpected in any sense. Unlike the parties in our other cases, the Mennonite Board had a regular event, the assessment of taxes, upon which to focus, in its effort to protect its interest. Further, approximately 95% of the mortgage debt outstanding in the United States is held by private institutional lenders and federally supported agencies. U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States: 1982-1983, p. 511 (103d ed.). [ Footnote 2/6 ] It is highly unlikely, if likely at all, that a significant number of mortgagees are unaware of the consequences that ensue when their mortgagors fail to pay taxes assessed on the mortgaged property. Indeed, in this case, the Board itself required that Moore pay all property taxes.

There is no doubt that the Board could have safeguarded its interest with a minimum amount of effort. The county auctions of property commence by statute on the second Monday of each year. Ind.Code § 6-1.1-24-2(5) (1982). The county auditor is required to post notice in the county courthouse at least three weeks before the date of sale. § 6-1.1-24-3(a). The auditor is also required to publish notice in two different newspapers once each week for three weeks before the sale. §§ 6-1.1-24-3(a), 6-1.1-22-4(b). The Board could have supplemented the protection offered by the State with the additional measures suggested by the court below: the Board could have required that Moore provide it with copies of paid tax assessments, or could have required that Moore deposit the tax moneys in an escrow account, or could have itself checked the public records to determine whether the tax assessment had been paid. 427 N.E.2d 686, 690, n. 9 (1981).

When a party is unreasonable in failing to protect its interest despite its ability to do so, due process does not require that the State save the party from its own lack of care. The balance required by Mullane clearly weighs in favor of finding that the Indiana statutes satisfied the requirements of due process. Accordingly, I dissent.


[ Footnote 2/1 ]

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 339 U. S. 314, we held that

[p]ersonal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents.

[ Footnote 2/2 ]

The Court is simply incorrect in asserting that, before Mullane, constructive notice was rarely deemed sufficient even as to in rem proceedings when residents of the State were involved, ante at 462 U. S. 796 -797, n. 3. See, e.g., Longyear v. Toolan, 209 U. S. 414, 209 U. S. 417 -418 (1908). See also Note, The Constitutionality of Notice by Publication in Tax Sale Proceedings, 84 Yale L.J. 1505, 1507 (1975) ("This rule [permitting constructive notice] was... extended to all in rem proceedings, whether involving property owned by nonresidents or residents").

[ Footnote 2/3 ]

In Mullane, the Court contrasted those parties whose identity and whereabouts are known or "at hand" with those "whose interests or whereabouts could not with due diligence be ascertained." 339 U.S. at 339 U. S. 318, 339 U. S. 317. This language must be read in the light of the facts of Mullane, in which the identity and location of certain beneficiaries were actually known. In addition, the Court in Mullane expressly rejected the view that a search "under ordinary standards of diligence" was required in that case. Id. at 339 U. S. 317.

[ Footnote 2/4 ]

The Court suggests that the notice that it requires

may ultimately relieve the county of a more substantial administrative burden if the mortgagee arranges for payment of the delinquent taxes prior to the tax sale.

Ante at 462 U. S. 800, n. 5. The Court neglects the fact that the State is a better judge of how it wants to settle its tax debts than is this Court.

[ Footnote 2/5 ]

This is not to say that the rule espoused must cover all conceivable mortgagees in all conceivable circumstances. The flexibility of due process is sufficient to accommodate those atypical members of the class of mortgagees.

[ Footnote 2/6 ]

The Court holds that "a mortgage need not involve a complex commercial transaction among knowledgeable parties...." Ante at 462 U. S. 799. This is certainly true; however, that does not change the fact that, even if the Board is not a professional moneylender, it voluntarily entered into a fairly sophisticated transaction with Moore. As the court below observed: "The State cannot reasonably be expected to assume the risk of its citizens' business ventures." 427 N. v.2d 686, 690, n. 9 (1981).

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