717:'s argument that requiring further effort when the government learns that notice was unsuccessful would cause the government to favor methods "that do not generate additional information," such as relying entirely on regular mail instead of certified mail. The Court considered this unlikely because the government is always being asked to prove that notice is sent and received, and the documentation that certified mail provides gives the State protection against false claims that notice was never received. The Court noted that this protection "comes at a price—the State also learns when notice has not been received," information that under the circumstances of this case, the State cannot simply ignore.
765:
presumption that individuals, especially those owning property, act in their own interest." The State was accordingly free to assume that the address it had on record was correct and up-to-date, or that he had left a caretaker at the house who would inform him of the notice. Whether a method is reasonably calculated to give notice is furthermore determined at the time the notice is sent, a principle Thomas believed followed from Court precedent. He argued that the Court had abandoned this by basing its decision on information that was unavailable when notice was sent, and that all of its suggested reasonable methods were "entirely the product of
697:
signature, and it would have made it possible for the letter to be forwarded to him. The State also could have simply posted a notice on the front door of the home or addressed the mail to "occupant," which are steps that most states require in their tax sale statutes. The Court believed that in either case, the current occupant of the home would be likely to read the notice and attempt to alert the owner, because a change in ownership would directly affect them. The Court observed that Jones had actually first learned of the tax sale after he was alerted by one of the occupants.
535:
using certified mail was in itself reasonably calculated to give notice, the knowledge that the State gained when the mail was returned unclaimed obligated it to take additional reasonable steps. However, "n response to the returned form suggesting that Jones had not received notice that he was about to lose his property, the State did—nothing." The Court believed that "someone who actually wanted to alert Jones that he was in danger of losing his house would do more when the attempted notice letter was returned unclaimed, and there was more that reasonably could be done."
31:
630:, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one ‘desirous of actually informing’ the owners would simply shrug his shoulders as the letters disappeared and say ‘I tried.’ Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman."
426:. No bids were submitted, which permitted the State to negotiate a private sale of the property. Several months later, Linda Flowers submitted a purchase offer. The Commissioner mailed another certified letter to Jones at the house, attempting to notify him that his house would be sold to Flowers if he did not pay his taxes. Like the first letter, the second was also returned to the Commissioner marked "unclaimed." Flowers subsequently purchased the house at approximately a quarter of its
667: (1956), the Court held that notice of foreclosure by mailing, posting, and publication was inadequate when town officials knew that the property owner was incompetent and without a guardian's protection. The Court did not see a distinction between having such knowledge prior to attempting notice and having such knowledge after notice was sent but prior to the actual taking. Just as the government's knowledge in
515:, the Court reversed the Arkansas Supreme Court and ruled that, under the circumstances, the State's sale of Jones' property violated due process. It 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."
605:, for example, the government knew that someone at the prison had signed for the letter. The knowledge that notice had failed was instead "a new wrinkle," and the question before the Court was therefore whether that knowledge constituted a circumstance that alters what notice is required. The Court believed that most
1182:
project was constitutionally insufficient. Contrary to Thomas' assertion, however, that case did not find posting notices to be "inherently unreliable;" the Court's decision actually stated instead that "in most cases, the secure posting of a notice on the property of a person is likely to offer that
696:
The Court believed that resending the notice by regular mail would have been a reasonable step, given that the return of the certified letter meant either that Jones was not home when the postman called, or that he no longer lived at that home. Regular mail would allow the letter to be left without a
790:
Thomas wrote of the Court's proposed alternatives that, "aside from being constitutionally unnecessary, are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State." Regular mail lacks the paper trail of certified mail, and Thomas thought it
736:
that the government should adopt, or to attempt to redraft a State's notice statute. Instead, "he State can determine how to proceed in response to our conclusion that notice was inadequate here." The Court considered it sufficient for it to determine "that additional reasonable steps were available
618:
the "interest of the State" against "the individual interest sought to be protected by the
Fourteenth Amendment." In this case, the Court, emphasized, "we evaluate the adequacy of notice prior to the State extinguishing a property owner's interest in a home," which the Court considered "an important
609:
and state supreme courts to have addressed this issue have decided that the government must do something more when it learns its attempt at notice has failed before it can sell real property in a tax sale. Many states also require by statute more than a simple notice by mail to the delinquent owner.
709:
if certified mail is returned, and the fact that
Arkansas transfers the cost of notice to the taxpayer or the tax sale purchaser, The Commissioner offered no estimate of how many notice letters are returned, and the Court believed that nothing supported the dissent's assertion that the Commissioner
802:
real estate are certified each year in
Arkansas, and that the Court's ruling would accordingly impose a burden on the State of locating thousands of delinquent property owners because of the "inefficiencies caused by delinquent taxpayers." Thomas instead believed that the Arkansas system requiring
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Regarding the Court's "storm drain" hypothetical, Thomas thought it actually raised a more difficult question of "when notice is sent—at the precise moment the
Commissioner places the mail in the postal carrier's hand or the split second later when he observes the departing carrier drop the
534:
Chief
Justice Roberts wrote that considering the "extraordinary power" the State is exerting against a property owner, "t is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed." Though the method of
724:
after failing to receive a tax bill and pay his property taxes, and that he was obliged to ensure that the occupants of his property would alert him if it were in jeopardy. Though acknowledging that Jones should have been more diligent regarding his property, the Court rejected that any of those
600:
as well as earlier cases, the State argued that once it provided notice reasonably calculated to apprise Jones of the impending tax sale by mailing him a certified letter, due process was satisfied. However, the Court pointed out that in each of those prior cases, the government had subsequently
764:
According to Thomas, the Court's inquiry should have ended with the conclusion that the State's chosen method of notice by certified mail was reasonably calculated to inform Jones of proceedings affecting his property interest. He argued that this finding was "reinforced by the well-established
455:
on the ground that the two unclaimed letters sent by the
Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers, concluding that the Arkansas tax sale
783:." Thomas stated that the majority's logic would require a State to consider additional means every time a doubt is raised as to whether notice has been achieved, imposing a requirement with "no natural end point" that Thomas thought effectively required "something close to actual notice."
688:
The Court proceeded to analyze whether there were additional reasonable steps that the State could have practicably taken to notify Jones of the tax sale. If there were such options for the State, the newspaper advertisement announcing the sale could not render notice adequate, because
675:
that notice pursuant to the normal procedure was ineffective triggered an obligation on the government's part to take additional steps to effect notice, the government's knowledge should similarly be taken into account in assessing the adequacy of notice in this case. Though
Justice
680:’ dissent characterized the State's knowledge that its notice was ineffective as "learned long after the fact," the Court pointed out that it had actually received the returned notice within three weeks; under Arkansas law, it had two years before it could proceed with the sale.
756:
to property should not turn on "wrinkles" (as the Court had characterized the issue in this case) that Thomas believed were caused by Jones' own failure to protect his property. He further added that "he meaning of the
Constitution should not turn on the antics of
778:
that actual notice is not required implied that the government is not required to take additional steps when it becomes aware that its attempt at notice has failed. He accordingly characterized the Court's ruling as "little more than a thinly veiled attack on
814:
was characterized as "an almost paradigmatic case pitting an individual against the state." It was also said to be the second decision that year in which
Roberts had "expressed frustration with a bureaucratic response to a serious concern."
412:
to Jones at the house. The packet of information stated that unless Jones redeemed the property, it would be subject to public sale two years later on April 17, 2002. Nobody was home to sign for the letter, and nobody appeared at the
151:
When the notice of a tax sale is returned unclaimed, the
Fourteenth Amendment's guarantee of due process requires the State to take additional reasonable steps to contact the property owner before it can sell his property.
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that posting notices was insufficient because the government was aware that in that particular housing project, the notices were frequently removed by children or other tenants before the intended recipients ever saw
613:
The means by which service of notice is attempted "must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," Whether a particular method is adequate is determined by
705:, and then negotiating a private sale of the property." The Court considered the assertion of burden further undermined by the requirement in Arkansas that notice to homestead owners be accomplished by personal
700:
Though the Commissioner argued that even those additional steps were burdensome, the Court countered that it had instead undertaken "the burden and expense of purchasing a newspaper advertisement, conducting an
1042:) ("The fact that one of the mailings was returned by the post office as undeliverable does not impose on the state the obligation to undertake an investigation to see if a new address . . . could be located").
1025:
2003) ("We reject the view that the enforcing officer's obligation is always satisfied by sending the notice to the address listed in the tax roll, even where the notice is returned as undeliverable"), with
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prior to a governmental taking of property, but instead only that the government attempt to give notice by a method "reasonably calculated, under all the circumstances," to inform all interested parties.
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Circuit 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 his property without
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of his due process right to receive adequate notice. The method of certified mail furthermore made it impossible for the occupant to notify Jones, because only Jones could have signed for the letter.
650: (1972), the Court had ruled that notice of forfeiture proceedings sent to a vehicle owner's home address was inadequate when the State knew that the property owner was in prison. Similarly, in
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After the Supreme Court handed down its decision, the Commissioner's chief of staff asserted that a non-certified letter and a notice to "occupant" had in fact been delivered to Jones' house. See
1117:, those assertions were not part of the record the Supreme Court could consider. To avoid confusion, this article has accordingly limited the background to the facts the case was decided upon.
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The Court noted prior cases in which the government had been required to take notice of "unique information about an intended recipient" that it had known prior to its attempt at notice. In
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was only permissible when it was not possible or practicable to give more adequate notice. If there were no such options for the State, "it cannot be faulted for doing nothing."
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by sending notice to the jail where the property owner was imprisoned and allowing a prison official to sign for it, even though the prisoner never actually received the notice.
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The case was perceived as an interesting look into the new Roberts Court, as the new Chief Justice chose a decision for his fourth opinion that was contrary to the position of
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mail down the storm drain. That more difficult question is not before us in this case because Arkansas learned long after the fact that its attempts had been unsuccessful."
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as opened and read as the Court had speculated. He also stated that the Court had previously concluded that posting notices was "an inherently unreliable method."
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The Court did not believe that someone who actually desired to inform the owner would do nothing further when a certified letter is returned unclaimed, and
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notice delivered to the property. The notice was served on Jones' daughter, who contacted Jones and notified him of the unpaid taxes and the tax sale.
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The Commissioner also argued that further measures were not required because Jones had a legal obligation to keep his address updated, that he was on
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2004) ("In light of the notice's return, the County was required to use 'reasonably diligent efforts' to ascertain Akey's correct address"), and
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requires the government to take additional reasonable steps to notify a property owner when notice of a tax sale is returned undelivered. The
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the State's position by analogy. "If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the
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to retrieve the letter within the next 15 days. The post office returned the unopened packet to the Commissioner marked "unclaimed."
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statute, which set forth the notice procedure followed by the Commissioner, complied with constitutional due process requirements.
389:. However, after Jones paid off his mortgage in 1997, his wife failed to pay the property taxes, and the property was certified as
1244:, the government had failed to establish a compelling interest in prosecuting a church for its ritual use of a hallucinogenic tea.
752:, arguing that under Court precedent, the State's notice attempts clearly satisfied due process requirements. He wrote that the
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to take additional reasonable steps to notify the owner before the sale could proceed. The Court's opinion was delivered by
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in 1993. Jones then moved into an apartment in Little Rock, and his wife continued to live in the house. Jones paid his
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Though this case was decided under the Fourteenth Amendment, which only applies to the states, the Court interprets its
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Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in the
1113:, April 27, 2006. However, because of the posture of the case when it reached the Supreme Court after decision by
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the property owner to maintain a current address with the state taxing authority was reasonable and sufficient.
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526:, arguing that the State's attempts went beyond any requirements the Court's prior precedents had established.
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administration lawyers, Justices Scalia and Thomas, "the court's two best-known conservatives," and Justice
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property owner sufficient warning of the pendency of proceedings possibly affecting his interests."
886:. The Court's ruling will accordingly be extended to actions taken by the federal government as well.
865:, did not participate, because he was confirmed fourteen days after the case was heard for argument.
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Gary Kent Jones v. Linda K. Flowers and Mark Wilcox, Arkansas Commissioner of State Lands
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was just as likely that mail addressed to "occupant" would be thrown out as
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834:. This was the first majority opinion by Roberts to provoke any dissents.
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Tax sale invalid, justices conclude – Supreme Court reverses state, 5-3
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must physically locate "tens of thousands of properties every year."
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Alito took no part in the consideration or decision of the case.
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heard nothing back indicating that its attempts had failed. In
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each month for 30 years, and the mortgage company paid Jones'
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did not know that its method of notice had failed before the
404:, attempted to notify Jones of his tax delinquency, and his
1226:
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
356:, in dissent, believed the Court was instead undermining
505:, and argued in support of the Commissioner's position.
992:
545 U.S. 1165, 126 S. Ct. 35, 162 L. Ed. 2d 933 (2005).
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for Arkansas to employ before taking Jones' property."
1352:
United States Supreme Court cases of the Roberts Court
960:, No. CIV2003-8565. Judge Timothy Davis Fox presided.
549:
Fourteenth Amendment to the United States Constitution
1240: (2006), in which the Court ruled that under the
1202:
Court Puts Teeth in 'Notice' Needed to Seize Property
844:
List of United States Supreme Court cases, volume 547
336:
is not achieved. The four justices who dissented in
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The Court had last addressed the issue of notice in
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Roberts, joined by Stevens, Souter, Ginsburg, Breyer
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1255:High Court Rules Against State's Seizure of House
580: (2002) that the government did not violate
491:and state supreme courts concerning whether the
1080:Mullane v. Central Hanover Bank & Trust Co.
137:2008 Ark. LEXIS 267 (Apr. 17, 2008) (regarding
304:was required by the Due Process Clause of the
1174: (1982), which ruled that the posting of
1066:The Supreme Court, 2005 Term — Leading Cases,
588:established that due process did not require
555:and an opportunity to be heard before it may
377:, in which he lived with his wife until they
276:, 547 U.S. 220 (2006), was a decision by the
8:
1092:see Ark. Code Ann. § 26-37-301 (Supp. 2005).
913:was written by the previous chief justice,
117:Circuit Court; affirmed, 359 Ark. 443, 198
551:requires a State to provide an owner with
20:
451:. The Commissioner and Flowers moved for
373:In 1967, Gary Jones purchased a house in
113:granted to defendants, No. CIV2003-8565,
1028:Smith v. Cliffs on the Bay Condo. Ass'n.
878:protections the same as those under the
315:, his fourth majority opinion after his
1357:United States civil forfeiture case law
1329:Supreme Court (slip opinion) (archived)
1223:See also Roberts' majority decision in
854:
798:Thomas observed that 18,000 parcels of
772:Thomas believed the Court's holding in
508:In a five-justice opinion delivered by
121:520, 2004 Ark. LEXIS 722, No. 04-449, (
1126:Ark. Code § 26-37-301(e) (Supp. 2005).
1178:notices on the doors of tenants in a
909: (2002). The majority opinion in
826:, who was expected to be the Court's
18:2006 United States Supreme Court case
7:
1187:at 452. The Court instead found in
830:following the retirement of Justice
559:his property and sell it for unpaid
539:Reasonably calculated to give notice
499:was granted leave to participate as
402:Arkansas Commissioner of State Lands
340:formed the majority with Roberts in
972:, No. 04-449, 2004 Ark. LEXIS 722 (
713:The Court also disagreed with the
563:. The Court had recently ruled in
278:Supreme Court of the United States
36:Supreme Court of the United States
14:
1347:United States Supreme Court cases
1297:220 (2006) is available from:
1242:Religious Freedom Restoration Act
248:Thomas, joined by Scalia, Kennedy
1367:History of Little Rock, Arkansas
861:The ninth justice on the Court,
487:to resolve a conflict among the
29:
882:, which applies to the federal
529:
497:United States Solicitor General
292:to an owner before selling his
1362:2006 in United States case law
129:granted, 545 U.S. 1165 (2005).
1:
1069:120 Harv. L. Rev. 233 (2006).
948:See Ark. Code § 26-37-202(e).
939:See Ark. Code § 26-37-202(b).
725:conditions could amount to a
96:3451; 74 U.S.L.W. 4200 (2006)
1157:Thomas cited for support to
619:and irreversible prospect."
1083:, 339 U.S. 306, 315 (1950).
684:Additional reasonable steps
408:the property, by mailing a
1388:
1320:Oyez (oral argument audio)
896:Dusenbery v. United States
566:Dusenbery v. United States
483:The Supreme Court granted
329:Dusenbery v. United States
1135:Ark. Code § 26-37-104(a).
1110:Arkansas Democrat-Gazette
607:federal courts of appeals
530:Roberts' majority opinion
442:Jones filed a lawsuit in
423:Arkansas Democrat-Gazette
262:
252:
165:
150:
28:
369:Tax delinquency and sale
1107:, Michael R. Wickline.
807:Subsequent developments
653:Covey v. Town of Somers
438:State court proceedings
43:Argued January 17, 2006
1055:126 S. Ct. 979 (2006).
1003:Akey v. Clinton County
740:
715:U.S. Solicitor General
465:Arkansas Supreme Court
296:to satisfy his unpaid
264:U.S. Const. amend. XIV
156:reversed and remanded.
154:Arkansas Supreme Court
45:Decided April 26, 2006
691:notice by publication
375:Little Rock, Arkansas
88:126 S. Ct. 1708; 164
1258:, David G. Savage.
636:Robinson v. Hanrahan
479:Opinion of the Court
306:Fourteenth Amendment
930:§ 26-37-301 (1997).
832:Sandra Day O'Connor
321:dissenting opinions
284:requirement that a
212:Ruth Bader Ginsburg
1273:Greenhouse, supra.
1015:Kennedy v. Mossafa
545:Due Process Clause
493:Due Process Clause
352:occurred. Justice
176:Associate Justices
1264:, April 27, 2006.
1261:Los Angeles Times
1214:, April 27, 2006.
1176:unlawful detainer
1160:Greene v. Lindsey
1053:Jones v. Flowers,
990:Jones v. Flowers,
915:William Rehnquist
769:considerations."
471:does not require
432:unlawful detainer
428:fair market value
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761:and scofflaws."
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342:Jones v. Flowers
273:Jones v. Flowers
161:Court membership
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513:John G. Roberts
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406:right to redeem
396:In April 2000,
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354:Clarence Thomas
313:John G. Roberts
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27:
22:
16:
1286:
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863:Samuel Alito
857:
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258:Laws applied
224:Samuel Alito
219:
207:
200:David Souter
195:
183:
172:John Roberts
102:Case history
81:
53:
15:
1372:Foreclosure
876:due process
759:tax evaders
582:due process
469:due process
449:due process
415:post office
398:Mark Wilcox
282:due process
1341:Categories
1040:per curiam
1034:536, 541 (
1021:607, 611 (
1009:231, 236 (
884:government
828:swing vote
800:delinquent
727:forfeiture
485:certiorari
463:, and the
391:delinquent
364:Background
134:Subsequent
94:U.S. LEXIS
92:415; 2006
60:Docket no.
988:granted,
928:Ark. Code
911:Dusenbery
850:Footnotes
793:junk mail
781:Dusenbery
775:Dusenbery
750:dissented
624:satirized
616:balancing
603:Dusenbery
598:Dusenbery
596:Based on
586:Dusenbery
379:separated
358:Dusenbery
346:Dusenbery
338:Dusenbery
90:L. Ed. 2d
70:Citations
1285:Text of
838:See also
767:post hoc
745:Justice
669:Robinson
522:filed a
489:Circuits
461:appealed
383:mortgage
294:property
237:Majority
1302:Findlaw
1038:2000) (
1011:2d Cir.
734:service
707:service
703:auction
628:postman
547:of the
524:dissent
517:Justice
245:Dissent
146:Holding
125:2004);
64:04-1477
1332:
1326:
1323:
1317:
1314:
1311:Justia
1308:
1305:
1299:
1189:Greene
1032:N.W.2d
1030:, 617
1019:N.E.2d
1017:, 789
1005:, 375
898:,
747:Thomas
678:Thomas
553:notice
459:Jones
400:, the
350:taking
290:notice
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119:S.W.3d
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1192:them.
1167:
1036:Mich.
986:Cert.
902:
754:title
673:Covey
660:
643:
573:
561:taxes
302:state
298:taxes
288:give
286:state
127:cert.
107:Prior
1295:U.S.
1235:U.S.
1169:U.S.
1023:N.Y.
1007:F.3d
926:See
904:U.S.
820:Bush
671:and
662:U.S.
645:U.S.
575:U.S.
557:take
543:The
83:more
75:U.S.
73:547
1291:547
1238:418
1231:546
1185:Id.
1172:444
1165:456
974:Ark
907:161
900:534
665:141
658:351
641:409
578:161
571:534
123:Ark
78:220
1343::
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1229:,
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569:,
393:.
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86:)
80:(
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