Jenner & Block

Firm Files Second Petition for Certiorari to Protect Homeowners' Due Process Rights

Continuing its efforts to protect the due process rights of a mentally ill homeowner, Jenner & Block filed a second petition for a writ of certiorari in the U.S. Supreme Court last week.  Based on the principles established in the U.S. Supreme Court case Jones v. Flowers, the petition urged that the Court reverse an Illinois Supreme Court judgment that permitted a “tax scavenger” to take title to client Mary Lowe’s home through judicial action while she was hospitalized, notwithstanding the scavenger’s failure to provide her with actual notice of the tax hearing.   The Firm's previous petition for certiorari resulted in a U.S. Supreme Court order vacating and remanding the case to the Illinois Supreme Court for further consideration.

After failing to personally notify Ms. Lowe that she was in danger of losing her home for failing to pay $110.65 in property taxes, Apex Tax Investments, Inc. sent a notice by certified mail to Ms. Lowe’s home.  When Apex received the notice back as “undelivered” with a notation stating that “person is hospitalized” and reflecting the route carrier’s initials and route number, Apex took no further action to locate Ms. Lowe.  Instead, Apex proceeded to ask the court to transfer title to the sick woman’s home, which the court did based on the scavenger’s payment of $347.61 in taxes and accumulated interest.

Last year, the U.S. Supreme Court vacated the Illinois Supreme Court’s decision to the same effect and remanded the case for further consideration in light of the U.S. Supreme Court’s 2006 holding in Jones v. Flowers. According to the petition, Jones held that further inquiry is constitutionally required when a notice is returned unclaimed, and that the means used to give such notice must be such that “one desirous of actually informing the absentee might reasonably adopt.”  

On remand, the Illinois Supreme Court reaffirmed its prior decision, holding that the principle stated in Jones was not applicable to the Illinois statutory scheme guiding Ms. Lowe’s case.  The court distinguished Jones on the ground that Jones involved notice of a tax sale, while Ms. Lowe’s case centered on the notice of a proceeding to authorize issuance of a tax deed. 

The petition argues that the Illinois court interpreted and applied Jones in a manner inconsistent with the central holding of Jones.  Stressing that the Supreme Court’s focus in Jones was on the “actual taking” of property rather than the tax sale itself, the petition maintains that “Jones clearly applies to this case because the state extinguished Ms. Lowe’s remaining interest in her property by issuing an incontestable tax deed at the tax deed proceeding.”

Among other things, the petition also contends that the Illinois court erred in holding that Jones did not require Apex to take additional reasonable steps once it received the notations from the mail carrier on the returned envelope, because it took certain reasonable steps prior to receiving this new information.  The route carrier’s notations “are precisely the sort of information that requires additional steps,” said the petition. 

The Jenner & Block team on this pro bono case is led by Partner Barry Sullivan and includes Chairman Jerold S. Solovy, Of Counsel Benjamin K. Miller and Associate Denise Kirkowski Bowler.  Co-counsel are Cook County Public Guardian Robert F. Harris, Charles Perez Golbert, and Kass Plain.

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