May 26, 2006

In a victory for Jenner & Block and the Cook County Public Guardian, the U.S. Supreme Court on Monday directed the Illinois Supreme Court to review whether Mary Lowe, a mentally ill, hospitalized homeowner was afforded constitutionally sufficient notice of her property tax debt before her home was acquired for a few hundred dollars at a tax sale.

The U.S. Supreme Court summarily vacated and remanded the Illinois Supreme Court's decision upholding Apex Tax Investments, Inc.'s purchase of Mary Lowe's home.  The U.S. Supreme Court ordered the Illinois court to review the case in light of the High Court’s recent decision in Jones v. Flowers, in which the Justices ruled that state tax collectors have a constitutional duty to follow up when a payment-due is returned unclaimed.

In a petition for a writ of certiorari which the Firm filed on behalf of Cook County Public Guardian Robert F. Harris, as the supervised administrator of the Estate of Mary Lowe, prior to the decision in the Flowers case, the Firm had asked the Court to decide whether Apex was constitutionally required to undertake additional efforts in trying to locate Ms. Lowe before taking possession of her home, after its mailed notice was returned as “undelivered” with the notation "person is hospitalized."

Ms. Lowe’s legal problems began when she failed to pay property taxes in 1991 in the amount of  $110.65.  Apex then purchased the home in 1993 at a tax sale for $347.61, an amount that included the back taxes, interest and other fees. Pursuant to the Illinois statute that authorized the sale, Ms. Lowe, who was hospitalized at the time for mental illness, was entitled to redeem her property by paying those taxes within a certain period of time.  The tax purchaser Apex was required to notify Ms. Lowe of this redemption period, either personally or by undertaking a “diligent inquiry” to locate and serve her with notice. 

After Apex failed to serve Ms. Lowe personally, notice was sent by certified mail to Ms. Lowe's home.  A letter carrier whose route had included Ms. Lowe’s home for a number of years marked the envelopes with the notation that “person is hospitalized” and notified the post office of Ms. Lowe’s hospitalization.  The envelope also contained the letter carrier’s initials and identification number.  The undelivered, notated mail was filed with the court overseeing the tax proceeding to take Ms. Lowe's home.  Ms. Lowe, who remained hospitalized at a state mental health facility during this redemption period, never received notice.

“Anybody could have very easily followed up on the notation,” said Partner Barry Sullivan, who’s leading the Firm’s team on the case, in a Chicago Daily Law Bulletin article about the Court’s ruling.  “Mary Lowe’s whereabouts would have been found.” 

In a 1996 ex parte proceeding, a circuit court judge issued a tax deed to the company, ruling that Ms. Lowe’s redemption time had expired and that the company had exercised due diligence in finding her.  The court later appointed the Public Guardian to represent Ms. Lowe's interests.  The Public Guardian asserted that Apex had notice of Ms. Lowe’s hospitalization by virtue of the letter carrier’s notations, and that Apex’s failure to look into her whereabouts further constituted a failure to undertake diligent inquiry.   Ms. Lowe died in 1998 while her legal proceedings were still pending. 

The Circuit Court of Cook County ultimately ruled that Apex had no duty to follow up on the notations.  The Illinois Appellate Court affirmed that ruling, and in October 2005 the Supreme Court of Illinois rejected all arguments made by the Public Guardian on behalf of Ms. Lowe.  

In addition to Mr. Sullivan, the Jenner & Block team on the case included Jenner & Block Chairman Jerold S. Solovy, former Illinois Supreme Court Chief Justice Benjamin K. Miller, and Associates Denise Kirkowski Bowler, Anders C. Wick, and Benjamin M. Vetter.  The Estate was also represented by Robert F. Harris, the Public Guardian, and two of his colleagues, Charles Golbert, the Deputy Public Guardian and Kass Plain.

The case is Estate of Mary Lowe, by Robert F. Harris, Cook County Public Guardian and Supervised Administrator v. Apex Tax Investments, Inc. and John Herndon.

Please click here to view the Petition for a Writ of Certiorari.