In re Application of the County Collector ( 2007 )

Docket No. 97165.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re APPLICATION OF THE COUNTY COLLECTOR for
Judgment and Sale Against Lands and Lots Returned Delinquent for
Nonpayment of General Taxes and/or Special Assessments for the
Years 1991 and Prior Years (Apex Tax Investments, Inc., et al.,
Appellees, v. Mary Lowe, Deceased, by Patrick T. Murphy, Cook
County Public Guardian and Supervised Adm’r of the Estate of Mary
Lowe, Appellant).
Opinion filed April 19, 2007.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, and Garman concurred in the
judgment and opinion.
Justice Kilbride dissented, with opinion.
Justices Karmeier and Burke took no part in the decision.
OPINION
This cause is before us on remand from the United States
Supreme Court for further consideration in light of Jones v. Flowers,
547 U.S. ___, 164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). We have
allowed additional briefing and oral argument addressing the
Supreme Court’s decision in Jones. We also have permitted the
Mental Health Association in Illinois and the Mental Health Project
of the University of Chicago Law School’s Edwin F. Mandel Legal
Aid Clinic to file a brief amici curiae on behalf of the Cook County
public guardian, as supervised administrator for the estate of Mary
Lowe. In addition, we have permitted the Illinois Tax Purchasers
Association to file a brief amicus curiae on behalf of Apex Tax
Investments, Inc., and its subsequent transferee and claimed
beneficial interest holder, John Herndon.
The facts in this case are set forth in the original opinion of this
court (In re Application of the County Collector, 217 Ill. 2d 1 (2005)).
We repeat those facts in some detail in this opinion, as those facts are
relevant to our reconsideration in light of Jones.
BACKGROUND
In 1977, Mary Lowe purchased a single-family home located at
13250 South Riverdale in Chicago. In 1993, Lowe quitclaimed the
property to herself and William Austin. Austin died in 1994. Property
taxes were paid on the home until 1992, when $110.65 in assessed
taxes for the 1991 property tax year went unpaid.
Once property taxes become delinquent, the Property Tax Code
(the Code) (35 ILCS 200/1–1 et seq. (West 1994)) provides that the
county collector may file an application in the circuit court for
judgment and order of sale of the delinquent property. The Code
directs that the county collector shall publish notice of its intent to file
an application for judgment. 35 ILCS 200/21–110 (West 1994). The
notice must be published in a newspaper in the township where the
property is located at least 10 days before the application is filed. 35
ILCS 200/21–115 (West 1994). In addition, the county collector shall
send a notice of the application for judgment and sale, by certified or
registered mail, to the person in whose name the taxes were last
assessed at least 15 days before the date of the application for
judgment and sale of the delinquent property. 35 ILCS 200/21–135
(West 1994). The county collector must present proof of the mailing
to the court along with the application for judgment. 35 ILCS
200/21–135 (West 1994). The property owner can pay the delinquent
taxes and costs any time prior to the sale. 35 ILCS 200/21–165 (West
1994). If judgment is entered against the property, the county
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collector shall offer the property for sale pursuant to the judgment. 35
ILCS 200/21–190 (West 1994).
Following a tax sale, the Code provides that, in order to seek a tax
deed, the tax purchaser must deliver a notice to the county clerk to be
given to the party in whose name the taxes were last assessed. 35
ILCS 200/22–5 (West 1994). This notice must be delivered to the
county clerk within five months after the tax sale, and the county
clerk must mail the notice, within 10 days of receipt, by registered or
certified mail. 35 ILCS 200/22–5 (West 1994). This section 22–5
“Take Notice” advises a party that his property has been sold for
delinquent taxes, that redemption can be made until a specified date,
and that a petition for tax deed will be filed by the tax purchaser if
redemption is not made. 35 ILCS 200/22–5 (West 1994).
The Code provides for a second “Take Notice” to be sent to the
owners, occupants and parties interested in the delinquent property
not less than three months or more than five months prior to the
expiration of the period of redemption. 35 ILCS 200/22–10 (West
1994). This section 22–10 take notice must give notice of the sale and
the date of expiration of the period of redemption. 35 ILCS
200/22–10 (West 1994). The section 22–10 take notice must be
served: personally by the sheriff; by registered or certified mail, return
receipt requested; and by three publications in a newspaper. 35 ILCS
200/22–15, 22–20, 22–25 (West 1994).
Also “within 5 months but not less than 3 months prior to the
expiration of the redemption period,” the tax purchaser may file a
petition in the circuit court seeking an order directing the county clerk
to issue a tax deed to the property. See 35 ILCS 200/22–30 (West
1994). In order to receive an order issuing a tax deed, the redemption
period must expire without any redemption taking place, and the tax
purchaser must prove to the circuit court that it has strictly complied
with the statutory notice provisions set forth in sections 22–10
through 22–25 of the Code (35 ILCS 200/22–10 through 22–25 (West
1994)). 35 ILCS 200/22–30 (West 1994).
In this case, the circuit court granted the collector’s application for
judgment and sale. The county collector offered Lowe’s home for sale
and, on March 3, 1993, Apex Tax Investments, Inc. (Apex),
purchased the home at the annual Cook County tax sale for $347.61,
the amount of the 1991 tax delinquency and fees. Apex did not
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receive title to the property at that time, but instead received a
“certificate of purchase.” See 35 ILCS 200/21–250 (West 1994). The
certificate of purchase did not affect Lowe’s legal or equitable title to
the property. In addition, Lowe had the right to redeem the property,
upon payment of the tax arrearage and costs, until the redemption
period expired. See 35 ILCS 200/21–345 through 21–355 (West
1994).
On October 5, 1995, Apex filed a petition in the circuit court of
Cook County for a tax deed to the property. Apex’s tax petition stated
that the redemption period expired by extension on February 21,
1996. Because no redemption occurred by February 21, 1996, Apex’s
petition proceeded to an ex parte hearing on March 18, 1996.
At the March 18, 1996, hearing, Apex’s attorney testified
concerning Apex’s compliance with the statutory notice provisions of
sections 22–10 through 22–25 of the Code. Apex conducted a tract
search and learned that the property at issue was owned by Mary
Lowe and William Austin. Apex conveyed this information to the
Cook County sheriff and the clerk of the circuit court of Cook
County. Pursuant to section 22–15 of the Code (35 ILCS 200/22–15
(West 1994)), the Cook County sheriff attempted to personally serve
Lowe, Austin and “occupant” with the section 22–10 “take notice” on
October 26, 1995. The Cook County sheriff filed the returns of
service for the section 22–10 take notices with the clerk of the circuit
court on November 9, 1995. On each return of service, the deputy
sheriff wrote “House vacant per neighbors.” In addition, the deputy
sheriff wrote the word “MOVED” on the preprinted form to indicate
the reason why notice was not served.
Because the Cook County sheriff could not effect personal service
on Austin, Lowe or “occupant,” the sheriff also sent section 22–10
take notices to Austin, Lowe and “occupant” at the property’s address
by certified mail, return receipt requested. The three certified mail
notices were returned to the sheriff undelivered, and were filed with
the clerk of the circuit court.
The envelopes for the three certified mail notices were admitted
into evidence at the hearing on Apex’s petition for a tax deed. All
three envelopes were postmarked November 8, 1995, and were
stamped “return to sender.” On the envelope addressed to Austin, the
word “deceased” was handwritten in pencil on the left side of the
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envelope. The envelopes addressed to Lowe and “occupant”
contained stamps indicating that attempts were made to deliver the
notices on November 16, December 11, and December 18, 1995. In
addition, the two envelopes addressed to Lowe and “occupant”
contained a handwritten notation written vertically on the left side of
the envelope which read, “Person is Hospitalized.” Under that
notation, the number “2719” and the letters “JHT” were handwritten.
The handwritten notations on the envelopes have a line drawn
through them and are obscured in part by the circuit court clerk’s
filing stamp and the post office’s “return to sender” stamps. The
sheriff filed the returned certified mail notice for Austin with the
court on November 22, 1995, and filed the returned certified mail
notices for Lowe and “occupant” with the court on January 2, 1996.
Pursuant to statute, the clerk of the circuit court of Cook County
also sent section 22–10 take notices by certified mail to Lowe, Austin
and “occupant.” These notices were returned undelivered. The three
certified mail envelopes were postmarked November 8, 1995, and
were stamped “return to sender.” The three envelopes contained
notations indicating that attempts were made to deliver the notices on
November 9, November 15, and November 24, 1995. Apex also
provided publication notice to Lowe and Austin by publishing notice
in the Chicago Daily Law Bulletin on October 11, October 12, and
October 13, 1995.
At the hearing on Apex’s petition for tax deed, Apex’s attorney
testified that, in attempting to ascertain the whereabouts of Lowe and
Austin, the Cook County sheriff personally served a section 22–10
take notice on the law firm that prepared the 1993 quitclaim deed on
behalf of Lowe. The clerk of the circuit court also sent notice to the
law firm by certified mail on November 8, 1995. Moreover, the First
National Bank of Chicago, in its capacity as a mortgagee of the
property, was personally served with a section 22–10 take notice on
October 24, 1995. Likewise, the clerk of the circuit court sent notice
by certified mail to the bank on November 8, 1995.
Apex’s agent, Fred Berke, testified at the hearing that he had
visited the property and inspected it on behalf of Apex sometime
between October 21 and December 21, 1995. When Berke arrived at
the home, he knocked on the door and looked into the living room
window. Berke did not see any furniture inside the home. In addition,
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Berke spoke to a next-door neighbor who told Berke that the owner
of the property was the “Lowes,” but that no one was living there
currently. Berke testified that the home appeared to be uninhabited.
Apex’s attorney also testified that Apex checked city and
suburban phone directories and voter registration records, but was
unable to develop any address for William Austin or Mary Lowe
other than the subject property address. Apex’s attorney stated that all
regular efforts to locate Lowe and Austin had proven fruitless.
At the close of the hearing on Apex’s petition for tax deed, the
circuit court found that no redemption had been made, that Apex had
complied with the notice provisions of the Property Tax Code, and
that Apex had exercised “due diligence” in attempting to locate Lowe
and Austin. Consequently, on May 20, 1996, the circuit court directed
the county clerk to issue Apex a tax deed to the property. The tax
deed was issued on May 20, 1996.
Subsequently, on December 6, 1996, Apex entered into an
installment contract to sell the property to third-party John Herndon
for $10,000. Herndon testified via deposition that the property was in
substantial disrepair when he purchased it, describing the home as an
abandoned building. Herndon invested more than $20,000 in material
and labor in renovating the property, completing the renovations by
early 1998.
On September 5, 1997, two of Mary Lowe’s sons, Bruce and
Mario Lowe, filed a pro se petition for “Restoration of Property
Ownership” in the circuit court of Cook County, stating that Mary
Lowe had been in and out of various mental facilities for the past 30
years and that Lowe had been hospitalized in a mental-health facility
from August 26, 1995, to December 17, 1996. The petition stated that
Mary Lowe had been released to Bruce Lowe’s custody and that Mary
currently resided with Bruce in California. The pro se petition alleged
that personal service on an incompetent person violates that person’s
right to due process. The petition therefore asked that the court
reinstate Mary’s full rights of ownership in the subject property.
Based upon the allegation that Mary Lowe was mentally disabled,
the circuit court on November 1997 appointed the Cook County
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public guardian to represent her.1 The public guardian then filed a
petition, and later an amended petition, pursuant to section 2–1401 of
the Code of Civil Procedure (735 ILCS 5/2–1401 (West 1994)) and
section 22–45 of the Code (35 ILCS 200/22–45 (West 1994)),
seeking to have the tax deed that was issued to Apex set aside. The
public guardian alleged the Mary Lowe suffered from schizophrenia
and had been hospitalized at the Tinley Park Mental Health Center at
the time the section 22–10 notices were sent to the property in
November 1995. The public guardian also noted that two of the
notices mailed by the Cook County sheriff were returned with the
notation “Person is hospitalized 2719 JHT” written on the envelopes.
The public guardian alleged that the notations were written by mail
carrier Jewel Hightower. The number 2719 was Hightower’s postal
route numbers and the letters “JHT” were Hightower’s initials. The
public guardian contended that Apex failed to make diligent inquiry
concerning the whereabouts of Mary Lowe because Apex never
attempted to contact Hightower or the post office.
An evidentiary hearing on the public guardian’s amended petition
to set aside the tax deed was held on February 20, 2002. The circuit
court allowed Herndon to participate at the hearing because he had
purchased the subject property. Dr. Bernard Rubin testified at the
hearing that he had reviewed Lowe’s mental-health records and
concluded that Lowe had suffered from disorganized, chronic
schizophrenic disorder. Rubin said that from January 1995 until
October 1996, Lowe suffered from a mental illness, was generally
incompetent, and would not have been able to understand or respond
to legal documents served upon her between January 1995 and
October 1996.
Hightower also testified at the evidentiary hearing that she was a
mail carrier for the United States Postal Service and that the property
at issue was on her route. She wrote “Person is Hospitalized” on the
certified letters sent by the sheriff to Lowe and occupant. Hightower
1
Mary Lowe died on November 15, 1998. The probate division of the
circuit court of Cook County entered an order appointing the public
guardian as administrator to collect for the estate of Lowe, and the public
guardian, as administrator to the estate of Mary Lowe, was substituted as
the proper party to prosecute the amended petition to set aside the tax deed.
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also wrote her postal route number, “2719,” and her initials, “JHT,”
on the envelopes. At the time she made the notations on the
envelopes, Hightower knew that Lowe was in Tinley Park Mental
Health Center, but postal regulations did not allow her to note
anything more specific than the fact that an addressee was
hospitalized. Hightower testified that anyone wanting further
information concerning Lowe’s whereabouts could have come to the
post office and filled out the proper forms, although Hightower did
not further explain what forms would authorize disclosure that a
person was hospitalized in a mental-health facility.
On April 9, 2002, the circuit court denied the public guardian’s
amended petition to set aside the tax deed. The appellate court
affirmed. No. 1–02–1101 (2003) (unpublished order under Supreme
Court Rule 23). This court granted the public guardian’s petition for
leave to appeal and affirmed the circuit and appellate courts.
In affirming, this court noted that relief from an order issuing a
tax deed could be had under section 2–1401 of the Code of Civil
Procedure (735 ILCS 5/2–1401 (West 1994)), but that the grounds for
relief were limited as set forth in section 22–45 of the Code (35 ILCS
200/22–45 (West 1994)). In re Application of the County Collector,
217 Ill. 2d at 25-26. These grounds are limited to: (1) proof that the
taxes were paid prior to the sale; (2) proof that the property was
exempt from taxation; (3) proof by clear and convincing evidence that
the tax deed was procured by fraud or deception; or (4) proof by a
person or party holding a recorded ownership or other interest in the
property that he was not named as a party in the section 22–20
publication notice and that the tax purchaser did not make a diligent
inquiry and effort to serve that person or party with the notices
required pursuant to sections 22–10 through 22–30. 35 ILCS
200/22–45 (West 1994).
The public guardian argued that the tax deed issued to Apex
should be set aside because there was clear and convincing evidence
that Apex had procured the tax deed by fraud or deception. In re
Application of the County Collector, 217 Ill. 2d at 26. The public
guardian claimed that Apex’s representation that it had been unable
to ascertain Lowe’s whereabouts despite having conducted a diligent
search constituted fraud or deception in light of “ ‘Apex’s willful
ignorance with respect to the notations [from Hightower] on the
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undelivered envelopes.’ ” In re Application of the County Collector,
217 Ill. 2d at 23.
This court rejected the public guardian’s argument, noting that in
the context of tax deed proceedings, fraud is defined as a wrongful
intent or an act calculated to deceive. In re Application of the County
Collector, 217 Ill. 2d at 23. This court held that the record in the case
did not show fraud. Specifically, this court found that:
“The envelopes with Jewel Hightower’s notations on
them were returned by the post office to their sender, the
Cook County sheriff. The sheriff submitted the envelopes to
the clerk of the circuit court, who then placed the envelopes
in the court file, which, by statute, the clerk is required to
maintain in tax deed cases. [Citation.] There was nothing
unusual or unexpected about the fact that the envelopes were
returned, undelivered. Both an agent from Apex and a deputy
sheriff from the Cook County sheriff’s office had visited the
property, found it vacant, and had been told by neighbors that
the occupants of the home had moved. Further, the notations
on the envelopes addressed to Mary Lowe and ‘occupant,’
though legible, cannot reasonably be called prominent. The
notations have a line drawn through them and they are
partially obscured by the circuit court clerk’s filing stamps
and the post office’s ‘returned to sender’ stamps. More
important, there is no evidence that Apex attempted to
conceal the notations or alter the envelopes in any way. ***
On this record, the most that can be said with respect to
Apex’s actions is that Apex simply failed to discover the
notations on the envelopes. However, as this court has
frequently noted, the failure to uncover a particular fact
during the search for a delinquent taxpayer does not, by itself,
establish fraud.” In re Application of the County Collector,
217 Ill. 2d at 23-24.
This court also rejected the public guardian’s claim that the tax
deed should be set aside because Lowe had been denied her due
process right to adequate notice prior to the deprivation of her
property. This court concluded that the public guardian was
attempting to relitigate the circuit court’s diligent-inquiry finding–a
finding that could not be challenged in a section 2–1401 petition
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except on the grounds set forth in section 22–45 of the Code. In re
Application of the County Collector, 217 Ill. 2d at 37-38. Because this
court had already concluded that fraud under section 22–45 had not
been proven, this court declined to further consider the public
guardian’s argument that Apex failed to conduct a diligent inquiry to
locate Lowe. In re Application of the County Collector, 217 Ill. 2d at
38.
Finally, this court rejected the public guardian’s argument that the
Code is unconstitutional as applied to all individuals like Lowe, who
are hospitalized with a disabling mental illness during the section
22–10 notice period. In re Application of the County Collector, 217
Ill. 2d at 38. We held that the notice procedures set forth in sections
22–10 through 22–25 of the Code embodied all that could be done
under existing law to locate and identify a delinquent taxpayer who
is hospitalized for mental illness. In re Application of the County
Collector, 217 Ill. 2d at 41-42.
The United States Supreme Court subsequently granted the public
guardian’s petition for writ of certiorari, vacated the judgment of this
court, and remanded the cause for our further consideration in light
of Jones v. Flowers, 547 U.S. ___, 164 L. Ed. 2d 415, 126 S. Ct.
1708 (2006). Estate of Lowe v. Apex Tax Investments, Inc., 547 U.S.
___, 164 L. Ed. 2d 811, 126 S. Ct. 2287 (2006).
ANALYSIS
We begin our analysis on reconsideration with a review of the
Jones decision. At issue in Jones was whether the government must
take additional reasonable steps to provide notice before taking an
owner’s property when the notice of tax sale that was mailed to the
owner is returned undelivered. Jones, 547 U.S. at ___, 164 L. Ed. 2d
at 425, 126 S. Ct. at 1713.
In that case, Gary Jones purchased a home on Bryan Street in
Little Rock, Arkansas, in 1967 and lived in the Bryan Street home
with his wife until they separated in 1993. Jones then moved into an
apartment in Little Rock and his wife remained in the Bryan Street
home. Jones continued to pay the mortgage on the Bryan Street home
after he moved out, and the mortgage company paid Jones’ property
taxes. After the mortgage was paid off in 1997, the property taxes
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went unpaid and the property was certified as delinquent. Jones, 547
U.S. at ___, 164 L. Ed. 2d at 424, 126 S. Ct. at 1712.
In April 2000, the Commissioner of State Lands mailed a certified
letter to Jones at the Bryan Street home notifying Jones of the tax
delinquency and of his right to redeem the property. The letter also
stated that unless Jones redeemed the property, the property would be
subject to a public sale two years later on April 17, 2002. The post
office returned the certified letter to the Commissioner marked
“unclaimed” because no one was home to sign for the letter and no
one retrieved the letter from the post office within the next 15 days.
Jones, 547 U.S. at ___, 164 L. Ed. 2d at 424, 126 S. Ct. at 1712.
Two years later, the Commissioner published a notice of public
sale in the newspaper. No bids were submitted, so the State was
permitted to negotiate a private sale of the property. Thereafter, Linda
Flowers submitted a purchase offer. Accordingly, the Commissioner
mailed another certified letter to Jones at the Bryan Street address
notifying Jones that his house would be sold to Flowers if he did not
pay his taxes. This letter was returned to the Commissioner marked
“unclaimed.” Flowers then purchased the house and, after the 30-day
period for postsale redemption had passed, Flowers had an unlawful-
detainer notice delivered to the property. The unlawful-detainer notice
was served on Jones’ daughter. Jones’ daughter then told Jones about
the tax sale. Jones, 547 U.S. at ___, 164 L. Ed. 2d at 424, 126 S. Ct.
at 1712-13.
Jones filed suit in state 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
Jones’ property without due process. The trial court granted summary
judgment in favor of the Commissioner and Flowers, finding that the
state tax sale statute that set forth the notice procedure complied with
constitutional due process requirements. The Arkansas Supreme
Court affirmed, finding that attempting to provide notice by certified
mail satisfied due process under the circumstances. Jones, 547 U.S.
at ___, 164 L. Ed. 2d at 424-25, 126 S. Ct. at 1713.
Before the Supreme Court, the Commissioner argued that due
process was satisfied once the state provided notice reasonably
calculated to apprise Jones of the impending tax sale by mailing Jones
a certified letter. Jones, 547 U.S. at ___, 164 L. Ed. 2d at 425, 126 S.
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Ct. at 1714. The Supreme Court agreed that it had deemed notice
constitutionally sufficient if it was reasonably calculated to reach the
intended recipient when sent. Jones, 547 U.S. at ___, 164 L. Ed. 2d
at 426, 126 S. Ct. at 1714. However, the Court stated that it had never
addressed whether due process required further responsibility when
the government becomes aware, prior to the taking, that its attempt at
notice failed. Jones, 547 U.S. at 426, 164 L. Ed. 2d at 426, 126 S. Ct.
at 1714.
The Court explained that it did not “think that a person who
actually desired to inform a real property owner of an impending tax
sale of a house he owns would do nothing when a certified letter sent
to the owner is returned unclaimed.” Jones, 547 U.S. at ___, 164 L.
Ed. 2d at 427, 126 S. Ct. at 1716. Consequently, the State of
Arkansas’ decision to take no further action when the notice to Jones
was returned unclaimed was “not what someone ‘desirous of actually
informing’ Jones would do; such a person would take further
reasonable steps if any were available.” Jones, 547 U.S. at ___, 164
L. Ed. 2d at 428, 126 S. Ct. at 1716. The Court held that upon
receiving the returned form suggesting that Jones had not received
notice that his property was about to be sold, the “State should have
taken additional reasonable steps to notify Jones, if practicable to do
so.” Jones, 547 U.S. at ___, 164 L. Ed. 2d at 430, 126 S. Ct. at 1718.
The Court explained that there were several reasonable steps the
state could have taken when the certified letter to Jones was returned
unclaimed. For example, the state could have resent the notice by
regular mail so that a signature was not required. Jones, 547 U.S. at
___, 164 L. Ed. 2d at 431, 126 S. Ct. at 1718-19. In addition, the state
could have posted notice on the front door of the house or could have
addressed the mail to “occupant.” Jones, 547 U.S. at ___, 164 L. Ed.
2d at 431, 126 S. Ct. at 1719. Further, the Court found that the state’s
attempt to follow up with Jones by publishing notice in the newspaper
was not constitutionally adequate under the circumstances of the case
because it was possible and practicable to give Jones more adequate
warning of the impending tax sale. Jones, 547 U.S. at ___, 164 L. Ed.
2d at 433, 126 S. Ct. at 1720.
The Court rejected Jones’ claim, however, that the Commissioner
should have looked for his new address in the Little Rock phonebook
and other government records, including income tax rolls. Jones, 547
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U.S. at ___, 164 L. Ed. 2d at 431-32, 126 S. Ct. at 1719. The Court
stated that an “open-ended search for a new address–especially when
the State obligates the taxpayer to keep his address updated with the
tax collector [citation]–imposes burdens on the State significantly
greater than the several relatively easy options outlined above.”
Jones, 547 U.S. at ___, 164 L. Ed. 2d at 432, 126 S. Ct. at 1719.
The Court declined to prescribe the form of service that the state
should adopt, concluding that the state could determine how to
proceed in response to the Court’s conclusion that notice was
inadequate under the facts of this particular case. Jones, 547 U.S. at
___, 164 L. Ed. 2d at 433, 126 S. Ct. at 1721. Because notice in the
case before it was insufficient to satisfy due process, the Supreme
Court reversed the Arkansas state courts, holding 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.” Jones, 547 U.S. at ___, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713.
In reconsidering this case in light of Jones, we first note that this
case is factually distinguishable from Jones. The notice provided
pursuant to the Illinois Property Tax Code is far more comprehensive
than the notice provided for in the Arkansas statute at issue in Jones.
The Arkansas statute required the state to send only one notice, by
certified mail, to a property owner notifying him of the government’s
intent to sell his property for delinquent taxes. In contrast, the Illinois
statute provides that the county collector must provide notice to a
delinquent taxpayer by certified or registered mail before obtaining
a judgment order from the circuit court authorizing the sale of the
property. 35 ILCS 200/21–110, 21–115, 21–135 (West 1994). In
addition, after the court has ordered the sale of the property and the
property has been sold to a tax purchaser, the county clerk must notify
the delinquent taxpayer by certified or registered mail that the
property has been sold and that the taxpayer may redeem the property
by paying the tax arrearage on or before a specified date. 35 ILCS
200/22–5 (West 1994). Finally, a tax purchaser seeking to obtain a
tax deed also must send the delinquent taxpayer notice of the sale and
the expiration of the redemption period.
Jones is further distinguishable because the issue in that case
concerned the notice a state must provide to a property owner before
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taking his property. The Jones court characterized the issue before it
as “whether the Due Process Clause requires the government to take
additional reasonable steps to notify a property owner when notice of
a tax sale is returned undelivered,” and 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.” (Emphases
added.) Jones, 547 U.S. at ___, 164 L. Ed. 2d at 425, 126 S. Ct. at
1713. In holding that the state must take additional reasonable steps
to attempt to provide notice, the Supreme Court stated that it did “not
think that a person who actually desired to inform a real property
owner of an impending tax sale of a house he owns would do nothing
when a certified letter sent to the owner is returned unclaimed.”
(Emphasis added.) Jones, 547 U.S. at ___, 164 L. Ed. 2d at 427, 126
S. Ct. at 1716.
In this case, in contrast, there is no issue concerning notice of the
tax sale. As we observed in our original opinion:
“In the case at bar, it is undisputed that Mary Lowe was
mentally incapacitated from January 1995 through October
1996. However, the tax sale in this case, and the time periods
for the procedures noted above, occurred in 1993. The circuit
court made no finding regarding the competency, or
incompetency, of Mary Lowe in 1993. Moreover, while Dr.
Rubin testified as to Lowe’s incapacity in 1995 and 1996, he
did not testify with respect to her condition in 1993. Thus, it
appears that, prior to the deprivation of her property, and at
a time when there is no finding of record that she was
incompetent, Lowe was given notice of the application for
judgment and order of tax sale, had an opportunity to object
to the application for judgment, was given notice that the tax
sale had occurred, and was given notice that she had the right
to redeem her property.” (Emphasis added.) In re Application
of the County Collector, 217 Ill. 2d at 31.
Because there is no issue in this case concerning whether Lowe was
given notice of the tax sale, we find that the due process concerns in
Jones are not at issue in this case and, therefore, that Jones does not
require this court to reverse its prior opinion.
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The public guardian argues, however, that because the lack of
notice in this case concerns the hearing at which Lowe actually lost
the title to her home, Lowe was denied due process even if she may
have received some earlier notice. The public guardian contends that
the notice given to Lowe in this case was deficient because Apex
failed to follow up on specific information that would have led to the
discovery of Lowe’s whereabouts and, even absent that specific
information, Apex failed to make a diligent inquiry into finding
Lowe.
The public guardian notes that in Jones, the certified mail notices
were returned marked “unclaimed.” In this case, not only were the
section 22–10 certified mail notices to Lowe and “occupant” returned
unclaimed, but the envelopes also contained a notation from the letter
carrier that “Person is Hospitalized” along with the letter carrier’s
initials and postal route number. The public guardian argues that
Jones directly addressed this type of situation and held that due
process requires a party to follow up on information provided in
response to its chosen method of service.
The public guardian maintains that Hightower’s notation on the
envelopes in this case put Apex on notice that Lowe was not at the
property where notice was sent, was not receiving mail at that
address, and was hospitalized. In addition, the notation on the
envelopes indicated that Apex could follow up with Hightower to
find out where Lowe was hospitalized in order to provide Lowe with
actual notice. Further, had Apex followed up with Hightower, Apex
would have learned that Lowe was hospitalized in a state mental
institution and that she was incompetent. The public guardian asserts
that Apex had a constitutional duty under Jones to inspect the
returned envelopes and take reasonable steps in response to any
information that it discovered as a result.
Even if we were to accept the public guardian’s argument that
Jones applies in this case to the section 22–10 take notice, we
nonetheless find our prior opinion to be consistent with Jones. The
gravamen of the public guardian’s argument is that, under Jones,
Hightower’s notations on the envelopes provided additional
information to Apex that required Apex to take additional reasonable
steps in an attempt to provide constitutionally sufficient notice to
Lowe. We disagree.
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As discussed, the Supreme Court in Jones observed that the state
did nothing for two years after its notice to Jones was returned
unclaimed. The Supreme Court held that the state could have taken
additional reasonable steps to notify Jones that he was about to lose
his property, such as resending the notice by regular mail, posting
notice on the front door, or addressing the mail to “occupant.”
In this case, Apex did take numerous additional steps to notify
Lowe that her property had been sold and that a petition for tax deed
had been filed. Apex conducted a tract search of the property to
determine the owner of the property. The Cook County sheriff
attempted to personally serve Lowe, Austin and “occupant,” but
determined that the home was vacant. The Cook County sheriff also
sent the section 22–10 take notice by certified mail addressed to
Lowe, Austin and “occupant.” The clerk of the circuit court likewise
attempted to serve Lowe, Austin and “occupant” with the section
22–10 take notice by certified mail, return receipt requested.
Apex also served the section 22–10 take notice on the law firm
that prepared the quit claim deed in 1993, and on the mortgagee of the
property. Apex’s agent, Berke, visited the property and spoke with a
neighbor, who told Berke that the “Lowes” owned the property, but
no one currently lived there. Moreover, Apex checked city and
suburban phone directories and voter registration records in order to
find another address for Lowe and Austin.
It is clear that the steps taken by Apex exceeded those suggested
by the Jones Court as reasonable. In fact, the Jones Court stated that
the state was not required to search for Jones’ new address in the
Little Rock phone book or in other government records, explaining
that “[a]n open-ended search for a new address–especially when the
State obligates the taxpayer to keep his address updated with the tax
collector [citation]–imposes burdens on the State significantly greater
than the several relatively easy options outlined above.” Jones, 547
U.S. at ___, 164 L. Ed. 2d at 432, 126 S. Ct. at 1719.
In light of the foregoing, it is clear in this case that Apex’s
attempts at notice in this case were sufficient to satisfy due process
under Jones. We are not convinced that, under the circumstances of
this case, Apex was required to take additional steps in response to
Hightower’s notations on the certified mail envelopes. We cannot
consider the envelopes containing Hightower’s notations in isolation,
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but instead must consider the envelopes in light of all the facts in this
case.
Prior to receiving the envelope with the notation that “Person is
Hospitalized,” the Cook County sheriff filed returns of service
indicating that the property was vacant and that Lowe had moved.
This information was confirmed by Apex’s agent based upon his own
observation and his discussion with Lowe’s neighbor. Apex also
knew that Lowe had not responded to the county collector’s initial
notice of sale or the section 22–5 notice. Given the apparently
accurate information suggesting that Lowe had moved, which
conflicted with the notation that “Person is Hospitalized,” we cannot
say that Apex had a duty to further determine whether, in fact, Lowe
was hospitalized, where Lowe was hospitalized, and why Lowe was
hospitalized. We believe that such an open-ended search would
impose a significantly greater burden than required under Jones.
Moreover, we are not as confident as the public guardian that any
further inquiry would have revealed that Lowe was hospitalized at the
Tinley Park Mental Health Center. As the appellate court found:
“[T]he notation ‘person is hospitalized’ does not necessarily
mean the individual is hospitalized in a mental health center.
As the trial court indicated, individuals are hospitalized for
numerous reasons. Hospitalization at a mental health center
would not first come to mind when learning that a ‘person is
hospitalized.’ ” No. 1–02–1101 (unpublished order under
Supreme Court Rule 23).
In addition, as noted in our prior opinion, section 3(a) of the
Mental Health and Developmental Disabilities Confidentiality Act
(740 ILCS 110/3(a) (West 2000)) does not permit hospitals to
disclose to tax purchasers the fact that an individual is a recipient of
mental health services. In re Application of the County Collector, 217
Ill. 2d at 41. Likewise, Hightower did not explain what postal forms
would have authorized disclosure that Lowe was hospitalized in the
Tinley Park Mental Health Center.
Accordingly, we do not agree with the public guardian that, had
Apex followed up on Hightower’s notation, Apex would have
discovered where Lowe was hospitalized and that Lowe was mentally
incompetent. As the Supreme Court recognized, “[w]hat steps are
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reasonable in response to new information depends upon what the
new information reveals,” and if there are “no reasonable additional
steps the government could have taken upon return of the unclaimed
notice letter, it cannot be faulted for doing nothing.” Jones, 547 U.S.
at ___, 164 L. Ed. 2d at 430-31, 126 S. Ct. at 1718.
The public guardian next argues that, even absent the information
provided by Hightower, Apex failed to undertake an inquiry expected
of one seeking to inform Lowe of the proceedings against her. The
public guardian asserts that Apex’s agent, Berke, could have
questioned Lowe’s neighbor further concerning her whereabouts or
could have questioned other neighbors for information on Lowe.
Berke also could have posted information on the property, which
likely would have elicited further information.
Again, given the information available to Berke, we do not agree
that Jones would require Berke to conduct an open-ended search into
Lowe’s whereabouts. The information available to Berke was that the
property was vacant and that Lowe had moved. Further, Apex did
check city and suburban phone directories and voter registration
records in order to find another address for Lowe and Austin, but was
unable to find an address other than the subject property address.
Under the circumstances, we cannot say that Berke was required to
conduct further investigation or that Lowe was constitutionally
entitled to a more diligent inquiry.
Finally, we note that the public guardian argues that this court
erred in its prior opinion in rejecting the public guardian’s challenge
to the adequacy of Apex’s diligent inquiry, without addressing the
merits of that argument, on the basis that a circuit court’s diligent-
inquiry finding cannot be challenged in a section 2–1401 petition.
The public guardian contends that its challenge to the adequacy of
Apex’s diligent inquiry is authorized by section 22–45(4) of the
Code. The public guardian states that this court apparently read
section 22–45(4) as allowing relief only when a party can show both
that the tax purchaser failed to make a diligent inquiry and that the tax
purchaser failed to comply with statutory publication requirements.
The public guardian argues that section 22–45(4) should be read
disjunctively to permit relief to a property owner who can show either
a lack of diligent inquiry or a lack of adequate notice by publication.
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We decline to address the public guardian’s argument concerning
section 22–45(4), as our reconsideration of this case is limited to the
Supreme Court’s decision in Jones. Consequently, our
reconsideration of Apex’s diligent inquiry in attempting to serve
Lowe is limited to whether Apex’s notice to Lowe satisfied due
process under Jones.
After considering this case in light of the United States Supreme
Court’s decision in Jones, we find that this case does not present facts
establishing that Lowe was denied her due process right under Jones
to adequate notice prior to the deprivation of her property. For that
reason, we adhere to our former disposition in this cause and affirm
the judgment of the appellate court.
Appellate court judgment affirmed.
JUSTICES KARMEIER and BURKE took no part in the
consideration or decision of this case.
JUSTICE KILBRIDE, dissenting:
I respectfully dissent from the majority opinion because I disagree
with its interpretation and application of the Supreme Court’s opinion
in Jones v. Flowers, 547 U.S. 220, 164 L. Ed. 2d 415, 126 S. Ct. 1708
(2006). Jones stands for the proposition that a party with the duty to
provide notice to a property owner must “take additional reasonable
steps to attempt to provide notice” when “it is practicable to do so.”
Jones, 547 U.S. at ___, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. In
explaining the types of steps necessary to fulfill this requirement, the
Court reiterated the long-established standard cited in Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70
S. Ct. 652 (1950). Under that standard, to comport with due process,
notice “ ‘must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it.’ ” (Emphasis
added.) Jones, 547 U.S. at ___,164 L. Ed. 2d at 427, 126 S. Ct. at
1715, quoting Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct.
at 657. I do not believe that standard was met in this case.
As the majority correctly notes (slip op. at 13-14), the facts in
Jones differ from those in this appeal. Those differences, however,
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only serve to underscore the need for heightened due process
protections for property owners like Lowe, who face imminent danger
of forfeiting all interest in their homes without an opportunity to
object. In Jones, the Court addressed the sufficiency of Arkansas’
notice requirements prior to a tax sale. Jones, 547 U.S. at ___, 164 L.
Ed. 2d at 425, 126 S. Ct. at 1713. Slip op. at 13-14. Here, the issue
involves this state’s section 22–10 notice requirements after a tax sale
has occurred but before the owner is actually stripped of title to the
property. Slip op. at 14. Without the section 22–10 notice, Lowe was
at risk of irretrievably losing all interest in her home without being
given an opportunity to make a timely objection or redeem the
property.
Furthermore, the property owner in Jones was mentally competent
and simply neglected to ensure that the taxes on the property were
paid and that the mailing address in the tax records was updated.
Lowe, on the other hand, has a long history of serious mental health
problems and was undeniably incompetent when the section 22–10
notices were given. Moreover, her permanent mailing address in the
tax records was correct because she continued to reside at the
property except when she was hospitalized for mental-health
treatment.
Illinois’ section 22–10 “Take Notice” is designed to inform the
owner that property has already been sold at a tax sale and that title
will transfer to the tax purchaser if the property is not redeemed by
paying the back taxes before the expiration of the redemption period.
35 ILCS 200/22–10 (West 1994). Thus, this notice provides the final
opportunity for the property owner to preserve any interest in the
property. Due to the magnitude and imminence of the risk of
complete forfeiture, I believe that due process mandates even more
stringent notice requirements than those required before the sale of
the property. A heightened notice standard is justified when the
parties’ interests are balanced, with the imminent, irreversible loss of
title to a home or other property carrying substantial weight. See
Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657
(explaining that the specific test for the sufficiency of notice depends
on the balance between the interest of the individual being protected
by the due process clause and the state’s interest). See also Jones, 547
U.S. at ___, 164 L. Ed. 2d at 427, 126 S. Ct. at 1715 (quoting
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Mullane). Indeed, our legislature has deemed it appropriate to enact
more stringent statutory notice requirements in the postsale context
than in the presale context. Compare 35 ILCS 200/21–110, 21–115,
21–135 (West 1994) with 35 ILCS 200/22–5, 22–10, 22–15, 22–20,
22–25 (West 1994).
There is, however, one significant factual similarity between this
case and Jones. In both instances, after it became apparent that the
property owner had not received the statutory notice, the party obliged
to provide notice “did–nothing.” Jones, 547 U.S. at ___, 164 L. Ed.
2d at 430, 126 S. Ct. at 1718. The Court in Jones concluded that due
process necessitated “additional reasonable steps to notify [the
property owner], if practicable to do so.” Jones, 547 U.S. at ___, 164
L. Ed. 2d at 430, 126 S. Ct. at 1718.
More specifically, the Jones Court repeatedly noted the principle
that due process mandates notice “ ‘such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.’ ”
(Emphasis added.) Jones, 547 U.S. at ___, ___, ___, ___, 164 L. Ed.
2d at 427, 428, 433, 435, 126 S. Ct. at 1715, 1716, 1721, 1722,
quoting Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657.
Here, it is difficult to imagine that someone “desirous of actually
informing” Lowe of the impending loss of her property would find it
unreasonable or “impracticable” to call the post office to inquire
about the letter carrier’s notation on the returned certified mail
envelope addressed to Lowe stating that she was “hospitalized.”
While this standard conflicts with the inherently adverse interests of
tax purchasers, who rationally wish to obtain their tax deeds with the
least possible effort and expense, constitutional due process standards
do not exist for the benefit of the party intent on taking possession of
another’s property. See Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70
S. Ct. at 657. See also Jones, 547 U.S. at ___, 164 L. Ed. 2d at 433-
34, 126 S. Ct. at 1721 (noting that the state has far less incentive to
provide proper notice to property owners before taking actions
adverse to them than it has to secure the revenue obtained from the
taking). Fundamental due process safeguards are designed to provide
property owners with the right to be heard. Due process entails the
right to present objections and not be unwittingly stripped of property.
This right has little meaning if the owner is not informed of the
pending action and given the opportunity to object. See Greene v.
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Lindsey, 456 U.S. 444, 449-50, 72 L. Ed. 2d 249, 254-55, 102 S. Ct.
1874, 1877-78 (1982).
Moreover, while due process does not demand actual notice to the
property owner (Dusenbery v. United States, 534 U.S. 161, 170, 151
L. Ed. 2d 597, 606, 122 S. Ct. 694, 701 (2002)), the notice provided
must be “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” (emphasis added)
(Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657). Here,
the circumstances required Apex to follow up on the letter carrier’s
notation that Lowe was hospitalized. Only by following up on that
information would the notice provided be “reasonably calculated” to
afford Lowe notice “under all the circumstances” known to Apex at
the time. The arguably conflicting information suggesting that Lowe
had moved (see slip op. at 17) did not negate the relevance of the
additional information on the envelope to Apex’s duty to provide
notice sufficient to satisfy due process. The duty to provide due
process required the notice given to be “reasonably calculated, under
all the circumstances, to apprise” Lowe of the action. (Emphasis
added.) Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.
See slip op. at 16-17.
Similarly, ignoring information stating that the property owner is
hospitalized does not comply with Apex’s statutory duty under
section 22–15 (35 ILCS 200/22–15 (West 1994)). Section 22–15
mandates that a tax purchaser exercise “diligent inquiry and effort”
in finding the property owner and serving a section 22–10 notice. 35
ILCS 200/22–15 (West 1994). The plain and ordinary meaning of
“diligent” is “characterized by steady, earnest, attentive, and energetic
application and effort in a pursuit.” Webster’s Third New
International Dictionary 633 (1993). Under this definition, Apex’s
failure to do anything after being informed that Lowe was
hospitalized cannot reasonably be regarded as even “diligent inquiry
and effort” to locate and serve Lowe.
Nor does the mere possibility that Apex’s inquiries at the post
office may have been unsuccessful in obtaining information about
Lowe’s location or mental-health status fulfill its due process duty to
at least attempt to provide notice based on all available information.
Jones, 547 U.S. at ___, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713-14
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(citing Dusenbery, 534 U.S. at 170, 151 L. Ed. 2d at 606, 122 S. Ct.
at 701, and Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at
657). See slip op. at 17. Surely due process does not allow the
selective acknowledgment of information minimizing the tax
purchaser’s duty of notification and the complete disregard of other
available information requiring the “additional reasonable step” of
simply inquiring about the notation at the post office. See Jones, 547
U.S. at ___, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. Due process is
intended, after all, to provide property owners with a reasonable
opportunity to protect their interests. See Mullane, 339 U.S. at 314,
94 L. Ed. at 873, 70 S. Ct. at 657. The goal of due process is not to
minimize the notification burden placed on a tax purchaser.
Finally, requiring Apex to inquire about the letter carrier’s
notation at the post office does not constitute the type of “open-ended
search” rejected by the Jones Court. Jones, 547 U.S. at ___, 164 L.
Ed. 2d at 432, 126 S. Ct. at 1719. Apex would initially be required to
take the limited step of contacting the post office to inquire about the
notation on the returned certified mail envelope indicating that Lowe
was hospitalized. Apex may or may not be required to take other
reasonable and practicable steps to follow up on any subsequent
findings. Jones, 547 U.S. at ___, 164 L. Ed. 2d at 426, 126 S. Ct. at
1714 (quoting its explanation in Walker v. City of Hutchinson, 352
U.S. 112, 115, 1 L. Ed. 2d 178, 182, 77 S. Ct. 200, 202 (1956), that
“the ‘notice required will vary with circumstances and conditions’ ”).
Regardless of the outcome of its inquiry, however, Apex would not
be obliged to scour local hospitals in an open-ended search for Lowe.
Thus, because “[u]nder the circumstances presented here,
additional reasonable steps were available” to Apex, I believe it failed
to satisfy its due process obligations. Jones, 547 U.S. at ___, 164 L.
Ed. 2d at 425, 126 S. Ct. at 1713. I would reverse the appellate court
judgment and remand for further proceedings. Therefore, I
respectfully dissent from the majority opinion.
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