Bringing Clarity to Title Clearing: Tax Foreclosure and Due Process in the Internet Age
James J. Kelly Jr.
Notre Dame Law School
December 16, 2008
University of Cincinnati Law Review, Vol. 77, p. 63, 2008
University of Baltimore School of Law Legal Studies Research Paper No. 2009-3
The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by "one desirous of actually informing" the property owner. In subjecting to direct constitutional review the myriad notification decisions a foreclosure petitioner must make in conducting diligent attempts at notification, Jones, though rightly decided, threatens the validity of tax foreclosure proceedings and the titles that result from them in a fundamentally different way than earlier precedents that made notification more rigorous without loss of clarity.
After demonstrating the Court's historical use of rules and standards in this area of notice and opportunity to be heard, this Article will show how the development of constitutional safe harbors can be used to resolve the shortcomings of the rule/standard dichotomy. Deploying a theoretical framework for the judicial fostering of fair and efficient constitutional safe harbors, this Article advocates legislative enactment of and judicial support for detailed notification protocols tailored to the particular needs and behaviors of the different types of land interest holders entitled to foreclosure notice.
In order to provide reliable guidance to foreclosing parties, these notice procedures should be designed to meet a higher standard developed in the Court's due process jurisprudence. If a court finds a set of legislated protocols "reasonably certain to inform" the interested parties for whom they were designed, then that court should judge the constitutionality of notification choices that come before it against that certified rule. Such an approach would be preferable to reviewing those decisions directly using vague, albeit generally less restrictive, constitutional standards such as "reasonably calculated . . . to apprise" or "chosen by one desirous of actually informing." Notification protocols that meet this due process "super standard" of reasonable certainty can become safe harbors for those pursuing tax foreclosure remedies while still assuring full compliance with the guarantees of notice and opportunity to be heard embodied in constitutional jurisprudence.
Number of Pages in PDF File: 57
Keywords: due process, notice and opportunity to be heard, tax foreclosure, constitutional safe harbor, rules, standards, pliability rules
JEL Classification: K11, K40, K41Accepted Paper Series
Date posted: December 18, 2008 ; Last revised: August 31, 2009
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