OPINION OF THE COURT JONES V. FLOWERS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1477 GARY KENT JONES, PETITIONER v. LINDA K.
FLOWERS et al.

															on writ of certiorari to the supreme court of
arkansas

															[April 26, 2006]

															   Chief Justice Roberts delivered
the opinion of the Court.

															   Before a State may take property
and sell it for unpaid taxes, the Due Process Clause of the
Fourteenth Amendment requires the government to provide the owner
“notice and opportunity for hearing appropriate to the nature of
the case.” Mullane v. Central Hanover Bank & Trust
Co., 339 U. S.
306 , 313 (1950). We granted certiorari to determine whether,
when notice of a tax sale is mailed to the owner and returned
undelivered, the government must take additional reasonable steps
to provide notice before taking the owner’s property.

															I

															   In 1967, petitioner Gary Jones
purchased a house at 717 North Bryan Street in Little Rock,
Arkansas. He lived in the house with his wife until they separated
in 1993. Jones then moved into an apartment in Little Rock, and his
wife continued to live in the North Bryan Street house. Jones paid
his mortgage each month for 30 years, and the mortgage company paid
Jones’ property taxes. After Jones paid off his mortgage in 1997,
the property taxes went unpaid, and the property was certified as
delinquent.

															   In April 2000, respondent Mark
Wilcox, the Commissioner of State Lands (Commissioner), attempted
to notify Jones of his tax delinquency, and his right to redeem the
property, by mailing a certified letter to Jones at the North Bryan
Street address. See Ark. Code Ann. §26–37–301 (1997). 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.
See ibid. Nobody was home to sign for the letter, and
nobody appeared at the post office to retrieve the letter within
the next 15 days. The post office returned the unopened packet to
the Commissioner marked “ ‘unclaimed.’ ” Pet. for Cert.
3.

															   Two years later, and just a few weeks before
the public sale, the Commissioner published a notice of public sale
in the Arkansas Democrat Gazette. No bids were submitted, which
permitted the State to negotiate a private sale of the property.
See §26–37–202(b). Several months later, respondent Linda Flowers
submitted a purchase offer. The Commissioner mailed another
certified letter to Jones at the North Bryan Street address,
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.” Ibid. Flowers purchased the house, which the parties
stipulated in the trial court had a fair market value of $80,000,
for $21,042.15. Record 224. Immediately after the 30-day period for
postsale redemption passed, see §26–37–202(e), Flowers had an
unlawful detainer notice delivered to the property. The notice was
served on Jones’ daughter, who contacted Jones and notified him of
the tax sale. Id., at 11 (Exh. B).

															   Jones filed a lawsuit in Arkansas 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 his property
without due process. The Commissioner and Flowers moved for summary
judgment 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. App. to Pet. for Cert. 12a–13a. It concluded that the
Arkansas tax sale statute, which set forth the notice procedure
followed by the Commissioner, complied with constitutional due
process requirements.

															   Jones appealed, and the Arkansas Supreme Court
affirmed the trial court’s judgment. 359 Ark. 443, ___ S. W.
3d ___ (2004). The court noted our precedent stating that due
process does not require actual notice, see Dusenbery v. United States, 534 U. S. 161 , 170 (2002), and it held
that attempting to provide notice by certified mail satisfied due
process in the circumstances presented, 359 Ark., at ___, ___
S. W. 3d, at ___.

															   We granted certiorari, 545 U. S. ___ (2005),
to resolve a conflict among the Circuits and State Supreme Courts
concerning 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. Compare, e.g.,
Akey v. Clinton County , 375 F. 3d 231, 236 (CA2
2004) (“In light of the notice’s return, the County was required to
use ‘reasonably diligent efforts’ to ascertain Akey’s correct
address”), and Kennedy v. Mossafa , 100 N. Y.
2d 1, 9, 789 N. E. 2d 607, 611 (2003) (“[W]e 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 Smith v. Cliffs on the Bay Condominium Assn. , 463
Mich. 420, 429, 617 N. W. 2d 536, 541 (2000) (per
curiam) (“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”). We hold 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. Under the
circumstances presented here, additional reasonable steps were
available to the State. We therefore reverse the judgment of the
Arkansas Supreme Court.

															II

															A

															   Due process does not require that
a property owner receive actual notice before the government may
take his property. Dusenbery , supra , at 170.
Rather, we have stated that due process requires the government to
provide “notice 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.” Mullane , 339 U. S., at 314. The Commissioner argues that
once the State provided notice reasonably calculated to apprise
Jones of the impending tax sale by mailing him a certified letter,
due process was satisfied. The Arkansas statutory scheme is
reasonably calculated to provide notice, the Commissioner
continues, because it provides for notice by certified mail to an
address that the property owner is responsible for keeping up to
date. See Ark. Code Ann. §26–35–705 (1997). The Commissioner notes
this Court’s ample precedent condoning notice by mail, see, e.g., Dusenbery, supra, at 169; Tulsa Professional
Collection Services, Inc. v. Pope, 485 U. S. 478 , 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U. S. 791 , 798 (1983); Mullane , supra , at 318–319, and adds that the
Arkansas scheme exceeds constitutional requirements by requiring
the Commissioner to use certified mail. Brief for Respondent
Commissioner 14–15.

															   It is true that this Court has
deemed notice constitutionally sufficient if it was reasonably
calculated to reach the intended recipient when sent. See, e.g., Dusenbery , supra , at 168–169; Mullane , 339 U. S., at 314. In each of these cases, the
government attempted to provide notice and heard nothing back
indicating that anything had gone awry, and we stated that “[t]he
reasonableness and hence the constitutional validity of [the]
chosen method may be defended on the ground that it is in itself
reasonably certain to inform those affected.” Id., at 315;
see also Dusenbery , supra , at 170. But we have
never addressed whether due process entails further responsibility
when the government becomes aware prior to the taking that its
attempt at notice has failed. That is a new wrinkle, and we have
explained that the “notice required will vary with circumstances
and conditions.” Walker v. City of Hutchinson, 352 U. S. 112 ,
115 (1956). The question presented is whether such knowledge on the
government’s part is a “circumstance and condition” that varies the
“notice required.”

															   The Courts of Appeals and State Supreme Courts
have addressed this question on frequent occasions, and most have
decided that when the government learns its attempt at notice has
failed, due process requires the government to do something more
before real property may be sold in a tax sale.[ Footnote 1 ] See, e.g., Plemons v. Gale , 396 F. 3d 569, 576 (CA4 2005); Akey , 375 F. 3d, at 236; Hamilton v. Renewed Hope, Inc. , 277 Ga. 465, 468, 589 S. E. 2d
81, 85 (2003); Kennedy , 100 N. Y. 2d, at 9, 789
N. E. 2d, at 611; Malone v. Robinson , 614
A. 2d 33, 38 (D. C. App. 1992); St. George Antiochian
Orthodox Christian Church v. Aggarwal , 326 Md. 90,
103, 603 A. 2d 484, 490 (1992); Wells Fargo Credit
Corp. v. Ziegler , 780 P. 2d 703, 705 (Okla.
1989); Rosenberg v. Smidt , 727 P. 2d 778,
780–783 (Alaska 1986); Giacobbi v. Hall , 109
Idaho 293, 297, 707 P. 2d 404, 408 (1985); Tracy v. County of Chester , Tax Claim Bureau, 507 Pa. 288,
296, 489 A. 2d 1334, 1338–1339 (1985). But see Smith ,
463 Mich., at 429, 617 N. W. 2d, at 541; Dahn v. Trownsell , 1998 SD 36, ¶23, 576 N. W. 2d 535,
541–542; Elizondo v. Read , 588 N. E. 2d 501,
504 (Ind. 1992); Atlantic City v. Block C–11, Lot
11 , 74 N. J. 34, 39–40, 376 A. 2d 926, 928 (1977).
Many States already require in their statutes that the government
do more than simply mail notice to delinquent owners, either at the
outset or as a followup measure if initial mailed notice is
ineffective.[ Footnote 2 ]

															    In Mullane , we stated that “when
notice is a person’s due … [t]he means employed must be such as one
desirous of actually informing the absentee might reasonably adopt
to accomplish it,” 339 U. S., at 315, and that assessing the
adequacy of a particular form of notice requires balancing the
“interest of the State” against “the individual interest sought to
be protected by the Fourteenth Amendment,” id. , at 314.
Our leading cases on notice have evaluated the adequacy of notice
given to beneficiaries of a common trust fund, Mullane , supra; a mortgagee, Mennonite , 462 U. S. 791 ; owners of seized cash
and automobiles, Dusenbery, 534 U. S. 161 ; Robinson v. Hanrahan, 409 U. S. 38 (1972) (per curiam); creditors of an estate, Tulsa
Professional , 485 U. S. 478 ; and tenants living in
public housing, Greene v. Lindsey, 456 U. S. 444 (1982). In
this case, we evaluate the adequacy of notice prior to the State
extinguishing a property owner’s interest in a home.

															   We do 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. If the Commissioner prepared a
stack of letters to mail to delinquent taxpayers, handed them to
the postman, 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.

															   By the same token, when a letter is returned
by the post office, the sender will ordinarily attempt to resend
it, if it is practicable to do so. See Small v. United
States , 136 F. 3d 1334, 1337 (CADC 1998). This is
especially true when, as here, the subject matter of the letter
concerns such an important and irreversible prospect as the loss of
a house. Although the State may have made a reasonable calculation
of how to reach Jones, it had good reason to suspect when the
notice was returned that Jones was “no better off than if the
notice had never been sent.” Malone , supra, at
37. Deciding to take no further action is not what someone
“desirous of actually informing” Jones would do; such a person
would take further reasonable steps if any were available.

															   In prior cases, we have required the
government to consider unique information about an intended
recipient regardless of whether a statutory scheme is reasonably
calculated to provide notice in the ordinary case. In Robinson v. Hanrahan, we held 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. 409 U. S., at 40. In Covey v. Town of
Somers , 351 U.
S. 141 (1956), we 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. Id. , at 146–147.

															   The Commissioner points out that in these
cases, the State was aware of such information before it
calculated how best to provide notice. But it is difficult to
explain why due process would have settled for something less if
the government had learned after notice was sent, but before the
taking occurred, that the property owner was in prison or was
incompetent. Under Robinson and Covey , the
government’s knowledge that notice pursuant to the normal procedure
was ineffective triggered an obligation on the government’s part to
take additional steps to effect notice. That knowledge was one of
the “practicalities and peculiarities of the case,” Mullane , supra, at 314–315, that the Court took
into account in determining whether constitutional requirements
were met. It should similarly be taken into account in assessing
the adequacy of notice in this case. The dissent dismisses the
State’s knowledge that its notice was ineffective as “learned long
after the fact,” post , at 7, n. 5 (opinion of Thomas,
J.), but the notice letter was promptly returned to the State two
to three weeks after it was sent, and the Arkansas statutory regime
precludes the State from taking the property for two years while the property owner may exercise his right to redeem, see Ark.
Code Ann. §26–37–301 (Supp. 2005).

															   It is certainly true, as the Commissioner and
Solicitor General contend, that the failure of notice in a specific
case does not establish the inadequacy of the attempted notice; in
that sense, the constitutionality of a particular procedure for
notice is assessed ex ante , rather than post hoc .
But if a feature of the State’s chosen procedure is that it
promptly provides additional information to the government about
the effectiveness of notice, it does not contravene the ex
ante principle to consider what the government does with that
information in assessing the adequacy of the chosen procedure.
After all, the State knew ex ante that it would promptly
learn whether its effort to effect notice through certified mail
had succeeded. It would not be inconsistent with the approach the
Court has taken in notice cases to ask, with respect to a procedure
under which telephone calls were placed to owners, what the State
did when no one answered. Asking what the State does when a notice
letter is returned unclaimed is not substantively different.

															   The Commissioner has three further arguments
for why reasonable followup measures were not required in this
case. First, notice was sent to an address that Jones provided and
had a legal obligation to keep updated. See Ark. Code Ann.
§26–35–705 (1997). Second, “after failing to receive a property tax
bill and pay property taxes, a property holder is on inquiry-notice
that his property is subject to governmental taking.” Brief for
Respondent Commissioner 18–19. Third, Jones was obliged to ensure
that those in whose hands he left his property would alert him if
it was in jeopardy. None of these contentions relieves the State of
its constitutional obligation to provide adequate notice.

															   The Commissioner does not argue that Jones’
failure to comply with a statutory obligation to keep his address
updated forfeits his right to constitutionally sufficient notice,
and we agree. Id. , at 19; see also Brief for United States
as Amicus Curiae 16, n. 5 (quoting Mennonite , 462 U. S., at 799 (“ ‘[A] party’s ability
to take steps to safeguard its own interests does not relieve the
State of its constitutional obligation’ ”)). In Robinson , we noted that Illinois law required each vehicle
owner to register his address with the secretary of state, and that
the State’s vehicle forfeiture scheme provided for notice by mail
to the address listed in the secretary’s records. See 409 U. S., at
38, n. 1 (citing Ill. Rev. Stat., ch. 95 1 2, §3–405 (1971), and ch. 38, §36–1 (1969)).
But we found that the State had not provided constitutionally
sufficient notice, despite having followed its reasonably
calculated scheme, because it knew that Robinson could not be
reached at his address of record. 409 U. S., at 31–32. Although
Ark. Code Ann. §26–35–705 provides strong support for the
Commissioner’s argument that mailing a certified letter to Jones at
717 North Bryan Street was reasonably calculated to reach him, it
does not alter the reasonableness of the Commissioner’s position
that he must do nothing more when the notice is promptly returned
“unclaimed.” As for the
Commissioner’s inquiry notice argument, the common knowledge that
property may become subject to government taking when taxes are not
paid does not excuse the government from complying with its
constitutional obligation of notice before taking private property.
We have previously stated the opposite: An interested party’s
“knowledge of delinquency in the payment of taxes is not equivalent
to notice that a tax sale is pending.” Mennonite , supra, at 800. It is at least as widely known that
arrestees have the right to remain silent, and that anything they
say may be used against them, see Dickerson v. United
States, 530 U.
S. 428 , 443 (2000) (“ Miranda [v. Arizona, 384 U. S. 436 (1966),] has become embedded in routine police practice to the
point where the warnings have become part of our national
culture”), but that knowledge does not excuse a police failure to
provide Miranda warnings. Arkansas affords even a
delinquent taxpayer the right to settle accounts with the State and
redeem his property, so Jones’ failure to pay his taxes in a timely
manner cannot by itself excuse inadequate notice. Finally, the
Commissioner reminds us of a statement from Mullane that
the State can assume an owner leaves his property in the hands of
one who will inform him if his interest is in jeopardy. 339 U. S.,
at 316. But in this passage, Justice Jackson writes of “libel of a
ship, attachment of a chattel[,] or entry upon real estate in the
name of law”—such “seiz[ures]” of property, he concluded, “may
reasonably be expected to come promptly to the owner’s attention.” Ibid. An occupant, however, is not charged with acting as
the owner’s agent in all respects, and it is quite a leap from
Justice Jackson’s examples to conclude that it is an obligation of
tenancy to follow up with certified mail of unknown content
addressed to the owner. In fact, the State makes it impossible for
the occupant to learn why the Commissioner is writing the owner,
because an occupant cannot call for a certified letter without
first obtaining the owner’s signature. For all the occupant knows,
the Commissioner of State Lands might write to certain residents
about a variety of matters he finds important, such as state parks
or highway construction; it would by no means be obvious to an
occupant observing a certified mail slip from the Commissioner that
the owner is in danger of losing his property. In any event, there
is no record evidence that notices of attempted delivery were left
at 717 North Bryan Street. Mr. Jones
should have been more diligent with respect to his property, no
question. People must pay their taxes, and the government may hold
citizens accountable for tax delinquency by taking their property.
But before forcing a citizen to satisfy his debt by forfeiting his
property, due process requires the government to provide adequate
notice of the impending taking. U. S. Const., Amdt. 14; Mennonite , supra , at 799. B In response to the returned form suggesting
that Jones had not received notice that he was about to lose his
property, the State did—nothing. For the reasons stated, we
conclude the State should have taken additional reasonable steps to
notify Jones, if practicable to do so. The question remains whether
there were any such available steps. While “[i]t is not our
responsibility to prescribe the form of service that the
[government] should adopt,” Greene, 456 U. S., at 455,
n. 9, if there were no reasonable additional steps the
government could have taken upon return of the unclaimed notice
letter, it cannot be faulted for doing
nothing. We think there were several reasonable steps
the State could have taken. What steps are reasonable in response
to new information depends upon what the new information reveals.
The return of the certified letter marked “unclaimed” meant either
that Jones still lived at 717 North Bryan Street, but was not home
when the postman called and did not retrieve the letter at the post
office, or that Jones no longer resided at that address. One
reasonable step primarily addressed to the former possibility would
be for the State to resend the notice by regular mail, so that a
signature was not required. The Commissioner says that use of
certified mail makes actual notice more likely, because requiring
the recipient’s signature protects against misdelivery. But that is
only true, of course, when someone is home to sign for the letter,
or to inform the mail carrier that he has arrived at the wrong
address. Otherwise, “[c]ertified mail is dispatched and handled in
transit as ordinary mail,” United States Postal Service, Domestic
Mail Manual §503.3.2.1 (Mar. 16, 2006), and the use of certified
mail might make actual notice less likely in some cases—the letter
cannot be left like regular mail to be examined at the end of the
day, and it can only be retrieved from the post office for a
specified period of time. Following up with regular mail might also
increase the chances of actual notice to Jones if—as it turned
out—he had moved. Even occupants who ignored certified mail notice
slips addressed to the owner (if any had been left) might scrawl
the owner’s new address on the notice packet and leave it for the
postman to retrieve, or notify Jones
directly. Other reasonable followup measures, directed
at the possibility that Jones had moved as well as that he had
simply not retrieved the certified letter, would have been to post
notice on the front door, or to address otherwise undeliverable
mail to “occupant.” Most States that explicitly outline additional
procedures in their tax sale statutes require just such steps. See
n. 2, supra . Either approach would increase the
likelihood that the owner would be notified that he was about to
lose his property, given the failure of a letter deliverable only
to the owner in person. That is clear in the case of an owner who
still resided at the premises. It is also true in the case of an
owner who has moved: Occupants who might disregard a certified mail
slip not addressed to them are less likely to ignore posted notice,
and a letter addressed to them (even as “occupant”) might be opened
and read. In either case, there is a significant chance the
occupants will alert the owner, if only because a change in
ownership could well affect their own occupancy. In fact, Jones
first learned of the State’s effort to sell his house when he was
alerted by one of the occupants—his daughter—after she was served
with an unlawful detainer notice. Jones believes that the Commissioner should
have searched for his new address in the Little Rock phonebook and
other government records such as income tax rolls. We do not
believe the government was required to go this far. As the
Commissioner points out, the return of Jones’ mail marked
“unclaimed” did not necessarily mean that 717 North Bryan Street
was an incorrect address; it merely informed the Commissioner that
no one appeared to sign for the mail before the designated date on
which it would be returned to the sender. An open-ended search for
a new address—especially when the State obligates the taxpayer to
keep his address updated with the tax collector, see Ark. Code Ann.
§26–35–705 (1997)—imposes burdens on the State significantly
greater than the several relatively easy options outlined
above. The Commissioner complains about the burden
of even those additional steps, but his argument is belied by
Arkansas’ current requirement that notice to homestead owners be
accomplished by personal service if certified mail is returned,
§26–37–301(e) (Supp. 2005), and the fact that Arkansas transfers
the cost of notice to the taxpayer or the tax sale purchaser,
§26–37–104(a). The Commissioner has offered no estimate of how many
notice letters are returned, and no facts to support the dissent’s
assertion that the Commissioner must now physically locate “tens of
thousands of properties every year.” Post , at 10. Citing
our decision in Greene v. Lindsey, the Solicitor
General adds that posted notice could be taken down by children or
vandals. But in Greene , we noted that outside the specific
facts of that case, posting notice on real property is “a
singularly appropriate and effective way of ensuring that a person
… is actually apprised of proceedings against him.” 456 U. S., at
452–453. Successfully providing notice is often the most efficient
way to collect unpaid taxes, see Mennonite , 462 U. S., at
800, n. 5 (more effective notice may ease burden on State if
recipient arranges to pay delinquent taxes prior to tax sale); Tr.
of Oral Arg. 24 (85 percent of tax delinquent properties in
Arkansas are redeemed upon notice of delinquency), but rather than
taking relatively easy additional steps to effect notice, the State
undertook the burden and expense of purchasing a newspaper
advertisement, conducting an auction, and then negotiating a
private sale of the property to Flowers. The Solicitor General argues that requiring
further effort when the government learns that notice was not
delivered will cause the government to favor modes of providing
notice that do not generate additional information—for example,
starting (and stopping) with regular mail instead of certified
mail. We find this unlikely, as we have no doubt that the
government repeatedly finds itself being asked to prove that notice
was sent and received. Using certified mail provides the State with
documentation of personal delivery and protection against false
claims that notice was never received. That added security,
however, comes at a price—the State also learns when notice has not been received. We conclude that, under the
circumstances presented, the State cannot simply ignore that
information in proceeding to take and sell the owner’s property—any
more than it could ignore the information that the owner in Robinson was in jail, or that the owner in Covey was incompetent. Though the Commissioner argues that followup
measures are not constitutionally required, he reminds us that the
State did make some attempt to follow up with Jones by publishing
notice in the newspaper a few weeks before the public sale. Several
decades ago, this Court observed that “[c]hance alone” brings a
person’s attention to “an advertisement in small type inserted in
the back pages of a newspaper,” Mullane , 339 U. S., at
315, and that notice by publication is adequate only where “it is
not reasonably possible or practicable to give more adequate
warning,” id. , at 317. Following up by publication was not
constitutionally adequate under the circumstances presented here
because, as we have explained, it was possible and practicable to
give Jones more adequate warning of the impending tax
sale. The dissent forcefully articulates some basic
principles about constitutionally required notice, principles from
which we have no intention to depart. In particular, we disclaim
any “new rule” that is “contrary to Dusenbery and a
significant departure from Mullane .” Post , at 6.
In Dusenbery , the Government was aware that someone at the
prison had signed for the prisoner’s notice letter, and we
determined that this attempt at notice was adequate, despite the
fact that the State could have made notice more likely by requiring
the prisoner to sign for the letter himself. 534 U. S., at 171. In
this case, of course, the notice letter was returned to the
Commissioner, informing him that his attempt at notice had
failed. As for Mullane , it directs that
“when notice is a person’s due … [t]he means employed must be such
as one desirous of actually informing the absentee might reasonably
adopt to accomplish it.” 339 U. S., at 315. Mindful of the
dissent’s concerns, we conclude, at the end of the day, 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. As noted, “[i]t is not our responsibility to
prescribe the form of service that the [government] should adopt.” Greene , supra, at 455, n. 9. In prior cases
finding notice inadequate, we have not attempted to redraft the
State’s notice statute. See, e.g., Tulsa Professional , 485
U. S., at 490–491; Robinson , 409 U. S., at 40; Schroeder v. City of New York, 371 U. S. 208 , 213–214
(1962); Walker , 352 U. S., at 116; Covey , 351 U.
S., at 146–147. The State can determine how to proceed in response
to our conclusion that notice was inadequate here, and the States
have taken a variety of approaches to the present question. See
n. 2, supra . It suffices for present purposes that we
are confident that additional reasonable steps were available for
Arkansas to employ before taking Jones’
property. *  *  * There is no reason to suppose that the State
will ever be less than fully zealous in its efforts to secure the
tax revenue it needs. The same cannot be said for the State’s
efforts to ensure that its citizens receive proper notice before
the State takes action against them. In this case, the State is
exerting extraordinary power against a property owner—taking and
selling a house he owns. It 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. The Commissioner’s effort to provide notice
to Jones of an impending tax sale of his house was insufficient to
satisfy due process given the circumstances of this case. The
judgment of the Arkansas Supreme Court is reversed, and the case is
remanded for proceedings not inconsistent with this
opinion. It is
so ordered. Justice Alito took no part in the
consideration or decision of this case. Footnote 1 Most Courts of Appeals have also concluded that the Due
Process Clause of the Fifth Amendment requires the Federal
Government to take further reasonable steps in the property
forfeiture context. See, e.g., United States v. Ritchie , 342 F. 3d 903, 911 (CA9 2003); Foehl v. United States , 238 F. 3d 474, 480
(CA3 2001); Small v. United States , 136
F. 3d 1334, 1337–1338 (CADC 1998); Torres v. $36,256.80 U. S. Currency , 25 F. 3d 1154, 1161 (CA2
1994); Barrera-Montenegro v. United States , 74
F. 3d 657, 660 (CA5 1996); United States v. Rodgers , 108 F. 3d 1247, 1252–1253 (CA10 1997); see
also Garcia v. Meza , 235 F. 3d 287, 291 (CA7
2000) (declining to adopt a per se rule that only examines
notice at the time it is sent, but also declining to impose an
affirmative duty to seek out claimants in every case where notice
is returned undelivered). But see Madewell v. Downs , 68 F. 3d 1030, 1047 (CA8 1995); Sarit v. United States Drug Enforcement Admin. , 987 F. 2d
10, 14–15 (CA1 1993). Footnote 2 Many States require that notice be given to the occupants
of the property as a matter of course. See Cal. Rev. & Tax.
Code Ann. §3704.7 (West Supp. 2006); Ga. Code Ann.
§48–4–45(a)(1)(B) (Supp. 2005); Ill. Comp. Stat., ch. 35,
§§200/21–75(a), 200/22–10, 200/22–15 (West 2004); Me. Rev. Stat.
Ann., Tit. 36, §1073 (1990); Md. Tax-Prop. Code Ann.
§14–836(b)(4)(i)(2) (Lexis 2001); Mich. Comp. Laws Ann. §211.78i(3)
(West 2005); Minn. Stat. §281.23(6) (2004); Mont. Code Ann.
§§15–18–212(1)(a), (2)(A) (2005); N. D. Cent. Code Ann.
§57–28–04(3) (Lexis 2005); Okla. Stat., Tit. 68, §3118(A) (West
Supp. 2006); S. D. Codified Laws §10–25–5 (2004); Utah Code
Ann. §59–2–1351(2)(a) (Lexis 2004); Wis. Stat. §75.12(1)
(2003–2004); Wyo. Stat. Ann. §39–13–108(e)(v)(B) (2005). Some
States require that notice be posted on the property or at the
property owner’s last known address either at the outset, see Del.
Code Ann., Tit. 9, §§8724, 8772 (1989 and Supp. 2004); Ga. Code
Ann. §48–4–78(d) (Supp. 2005); Haw. Rev. Stat. §246–56 (2003); Md.
Tax-Prop. Code Ann. §14–836(b)(6) (Lexis 2001); Okla. Stat., Tit.
68, §3118(A) (West Supp. 2006), or as a followup measure when
personal service cannot be accomplished or certified mail is
returned, see Fla. Stat. §197.522(2)(a) (2003); Minn. Stat.
§281.23(6) (2004); S. C. Code Ann. §12–51–40(c) (Supp. 2005).
And a few States require a diligent inquiry to find a property
owner’s correct address when mailed notice is returned. See Miss.
Code Ann. §27–43–3 (2002); Nev. Rev. Stat. §361.595(3)(b) (2003);
Pa. Stat. Ann., Tit. 72, §5860.607a (Purdon 1990); R. I. Gen.
Laws §44–9–25.1 (2005). See also 26 U. S. C. §6335(a) (requiring
the Internal Revenue Service to make a reasonable attempt to
personally serve notice on a delinquent taxpayer before relying
upon notice by certified mail); 28 U. S. C.
§3203(g)(1)(A)(i)(IV) (requiring written notice to tenants of real
property subject to sale under the Federal Debt Collection
Practices Act); 12 U. S. C. §3758(2)(A)(iii) (requiring
written notice to occupants before foreclosure by the Secretary of
Housing and Urban Development); §3758(2)(B)(ii) (requiring that
notice be posted on the property if occupants are
unknown). THOMAS, J., DISSENTING JONES V. FLOWERS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-1477 GARY KENT JONES, PETITIONER v. LINDA K.
FLOWERS et al.

															on writ of certiorari to the supreme court of
arkansas

															[April 26, 2006]

															   Justice Thomas, with whom Justice
Scalia and Justice Kennedy join, dissenting.

															   When petitioner failed to pay his
property taxes for several consecutive years, respondent
Commissioner of State Lands in Arkansas, using the record address
that petitioner provided to the State, sent petitioner a letter by
certified mail, noting his tax delinquency and explaining that his
property would be subject to public sale if the delinquent taxes
and penalties were not paid. After petitioner failed to respond,
the State also published notice of the delinquency and public sale
in an Arkansas newspaper. Soon after respondent Linda K. Flowers
submitted a purchase offer to the State, it sent petitioner a
second letter by certified mail explaining that the sale would
proceed if the delinquent taxes and penalties were not paid.

															   Petitioner argues that the State violated his
rights under the Due Process Clause of the Fourteenth Amendment
because, in his view, the State failed to take sufficient steps to
contact him before selling his property to Flowers. Petitioner
contends that once the State became aware that he had not claimed
the certified mail, it was constitutionally obligated to employ
additional methods to locate him.

															   Adopting petitioner’s arguments, the Court
holds today 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.” Ante , at 4. The
Court concludes that it was practicable for Arkansas to take
additional steps here—namely, notice by regular mail, posting
notice on petitioner’s door, and addressing mail to “occupant.” Ante , at 13. Because, under this Court’s precedents, the
State’s notice methods clearly satisfy the requirements of the Due
Process Clause, I respectfully dissent.

															I

															   The Fourteenth Amendment
prohibits the States from “depriv[ing] any person of life, liberty,
or property, without due process of law.” This Court has held that
a State must provide an individual with notice and opportunity to
be heard before the State may deprive him of his property. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 ,
313 (1950). Balancing a State’s interest in efficiently managing
its administrative system and an individual’s interest in adequate
notice, this Court has held that a State must provide “notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action.” Id ., at
313–314. As this Court has explained, “when notice is a person’s
due … [t]he means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it.” Id ., at 315. “[H]eroic efforts,” however, are not
required. Dusenbery v. United States, 534 U. S. 161 , 170
(2002). To the contrary, we have expressly rejected “[a]
construction of the Due Process Clause which would place impossible
or impractical obstacles in the way [of the State].” Mullane,
supra, at 313–314. Thus, “none of our cases … has required
actual notice”; instead, “we have allowed the Government to defend
the ‘reasonableness and hence the constitutional validity of any
chosen method … on the ground that it is in itself reasonably
certain to inform those affected.’ ” Dusenbery, supra, at 169–170 (quoting Mullane , supra , at 315).

															   The methods of notice employed by
Arkansas were reasonably calculated to inform petitioner of
proceedings affecting his property interest and thus satisfy the
requirements of the Due Process Clause. The State mailed a notice
by certified letter to the address provided by petitioner. The
certified letter was returned to the State marked “unclaimed” after
three attempts to deliver it. The State then published a notice of
public sale containing redemption information in the Arkansas
Democrat Gazette newspaper. After Flowers submitted a purchase
offer, the State sent yet another certified letter to petitioner at
his record address. That letter, too, was returned to the State
marked “unclaimed” after three delivery attempts.[ Footnote 1 ]

															   Arkansas’ attempts to contact petitioner by
certified mail at his “record address,” without more, satisfy due
process. Dusenbery, supra , at 169. See also Mullane,
supra , at 318; Tulsa Professional Collection Services,
Inc. v. Pope, 485 U. S. 478 , 490
(1988) (“We have repeatedly recognized that mail service is an
inexpensive and efficient mechanism that is reasonably calculated
to provide actual notice”); Mennonite Bd. of Missions v. Adams, 462
U. S. 791 , 792, 798 (1983) (holding that “notice mailed to [the affected party’s] last known available
address ” is sufficient where a State seeks to sell “real
property on which payments of property taxes have been delinquent”
(emphasis added)). Because the notices were sent to the address
provided by petitioner himself, the State had an especially sound
basis for determining that notice would reach him. Moreover,
Arkansas exceeded the constitutional minimum by additionally
publishing notice in a local newspaper.[ Footnote 2 ] See Mullane , supra, at 318.
Due process requires nothing more—and certainly not here, where
petitioner had a statutory duty to pay his taxes and to report any
change of address to the state taxing authority. See Ark. Code Ann.
§26–35–705 (1997).

															   My conclusion that Arkansas’ notice methods
satisfy due process is reinforced by the well-established
presumption that individuals, especially those owning property, act
in their own interest. Recognizing that “ ‘[i]t is the part of
common prudence for all those who have any interest in [a thing],
to guard that interest by persons who are in a situation to protect
it,’ ” Mullane , supra , at 316 (quoting The Mary , 9 Cranch 126, 144 (1815)), this Court has
concluded that “[t]he ways of an owner with tangible property are
such that he usually arranges means to learn of any direct attack
upon his possessory or proprietary rights.” Mullane , 339
U. S., at 316. Consistent with this observation, Arkansas was free
to “indulge the assumption” that petitioner had either provided the
State taxing authority with a correct and up-to-date mailing
address—as required by state law—“or that he … left some caretaker
under a duty to let him know that [his property was] being
jeopardized.”[ Footnote 3 ] Ibid. The Court does not conclude that certified
mail is inherently insufficient as a means of notice, but rather
that “the government’s knowledge that notice pursuant to the normal
procedure was ineffective triggered an obligation on the
government’s part to take additional steps to effect notice.” Ante , at 9. I disagree.

															   First, whether a method of notice is
reasonably calculated to notify the interested party is determined ex ante, i.e., from the viewpoint of the government agency
at the time its notice is sent. This follows from Mullane ,
where this Court rested its analysis on the information the sender
had “at hand” when its notice was sent. 339 U. S., at 318.
Relatedly, we have refused to evaluate the reasonableness of a
particular method of notice by comparing it to alternative methods
that are identified after the fact. See Dusenbery , 534 U.
S., at 171–172. Today the Court appears to abandon both of these
practices. Its rejection of Arkansas’ selected method of notice—a
method this Court has repeatedly concluded is constitutionally
sufficient—is based upon information that was unavailable when
notice was sent. Indeed, the Court’s proposed notice
methods—regular mail, posting and addressing mail to “occupant,” ante , at 12–14—are entirely the product of post
hoc considerations, including the discovery that members of
petitioner’s family continued to live in the house. Similarly, the
Court’s observation that “[t]he Commissioner[’s] complain[t] about
the burden of … additional steps … is belied by Arkansas’ current
requirement that notice to homestead-owners be accomplished by
personal service if certified mail is returned,” ante, at
14–15, is contrary to Dusenbery ’s “conclusion that the
Government ought not be penalized and told to ‘try harder’ … simply
because [it] has since upgraded its policies,” 534 U. S., at 172
(citation omitted).

															   Second, implicit in our holding that due
process does not require “actual notice,” see id., at
169–170, is that when the “government becomes aware … that its
attempt at notice has failed,” ante, at 5, it is not
required to take additional steps to ensure that notice has been
received. Petitioner’s challenge to Arkansas’ notice methods, and
the Court’s acceptance of it, is little more than a thinly veiled
attack on Dusenbery. Under the majority’s logic, each time
a doubt is raised with respect to whether notice has reached an
interested party, the State will have to consider additional means
better calculated to achieve notice. Because this rule turns on
speculative, newly acquired information, it has no natural end
point, and, in effect, requires the States to achieve something
close to actual notice. The majority’s new rule is contrary to Dusenbery and a significant departure from Mullane .

															   The only circumstances in which this Court has
found notice by mail and publication inadequate under the Due
Process Clause involve situations where the state or local
government knew at the outset that its notice efforts were destined
to fail and knew how to rectify the problem prior to sending
notice. See Robinson v. Hanrahan, 409 U. S. 38 , 39 (1972) (per curiam) (intended recipient known to be in
jail) ; Covey v. Town of Somers , 351 U. S. 141 , 145
(1956) (intended recipient known to be incompetent and without a
guardian).

															   In Robinson , the State, having
arrested petitioner and detained him in county jail, immediately
instituted forfeiture proceedings against his automobile and mailed
notice of those proceedings to his residential address. 409 U. S.,
at 38. Robinson, who was incarcerated in the county jail during the
entirety of the forfeiture proceedings, did not receive notice of
the proceedings until after he was released and the forfeiture
order had been entered. Id. , at 38–39. Because the State
knew beforehand that Robinson was not at, and had no access to, the
address to which it sent the notice, this Court held that the
State’s efforts were not “reasonably calculated” to notify him of
the pending proceedings. Id., at 40. Similarly, in Covey , the Court concluded that the methods of notice used
by the town—mailing, posting, and publishing—were not reasonably
calculated to inform Covey of proceedings adverse to her property
interests because local officials knew prior to sending notice that
she was “without mental capacity to handle her affairs” and unable
to comprehend the meaning of the notices. 351 U. S., at 144,
146.

															   By contrast, Arkansas did not know at the time
it sent notice to petitioner that its method would fail; and
Arkansas did not know that petitioner no longer lived at the record
address simply because letters were returned “unclaimed.” Pet. for
Cert. 3. “[U]nclaimed” does not necessarily mean that an address is
no longer correct; it may indicate that an intended recipient has
simply failed or refused to claim mail. See United States Postal
Service, Domestic Mail Manual (DMM), §507, Exh. 1.4.1,
http://pe.usps.gov/text/dmm300/507.htm.[ Footnote 4 ] Given that the State had been using the
address provided by petitioner and that petitioner had a legal duty
to maintain a current mailing address with the state taxing
authority, return of the mail as “unclaimed” did not arm Arkansas
with the type of specific knowledge that the governments had at
hand in Robinson and Covey . Cf. ante, at
13. The State cannot be charged to correct a problem of
petitioner’s own creation and of which it was not aware.[ Footnote 5 ] Even if the State had
divined that petitioner was no longer at the record address, its
publication of notice in a local newspaper would have sufficed
because Mullane authorizes the use of publication when the
record address is unknown. See 339 U. S., at 316 (“[P]ublication
traditionally has been acceptable as notification supplemental to
other action which in itself may reasonably be expected to convey a
warning”).

															II

															   The Court’s proposed methods,
aside from being constitutionally unnecessary, are also burdensome,
impractical, and no more likely to effect notice than the methods
actually employed by the State.

															   In Arkansas, approximately 18,000
parcels of delinquent real estate are certified annually. Tsann
Kuen Enterprises Co. v. Campbell , 335 Ark. 110,
119–120, 129 S. W. 3d 822, 828 (2003). Under the Court’s rule, the
State will bear the burden of locating thousands of delinquent
property owners. These administrative burdens are not compelled by
the Due Process Clause. See Mullane, supra , at 313–314; Tulsa Professional Collection Services, Inc., 485 U. S.,
at 489–490 (stating that constitutionally sufficient notice “need
not be inefficient or burdensome”). Here, Arkansas has determined
that its law requiring property owners to maintain a current
address with the state taxing authority, in conjunction with its
authorization to send property notices to the record address, is an
efficient and fair way to administer its tax collection system. The
Court’s decision today forecloses such a reasonable system and
burdens the State with inefficiencies caused by delinquent
taxpayers.

															   Moreover, the Court’s proposed methods are no
more reasonably calculated to achieve notice than the methods
employed by the State here. Regular mail is hardly foolproof;
indeed, it is arguably less effective than certified mail.
Certified mail is tracked, delivery attempts are recorded, actual
delivery is logged, and notices are posted to alert someone at the
residence that certified mail is being held at a local post office.
By creating a record, these features give parties grounds for
defending or challenging notice. By contrast, regular mail is
untraceable; there is no record of either delivery or receipt. Had
the State used regular mail, petitioner would presumably argue that
it should have sent notice by certified mail because it creates a
paper trail.[ Footnote 6 ]

															   The Court itself recognizes the deficiencies
of its proposed methods. It acknowledges that “[f]ollowing up with
regular mail might … increase the chances of actual
notice”; “occupants who ignored certified mail notice slips … might scrawl the owner’s new address on the notice
packet,” ante , at 12; and “a letter addressed to
[occupant] might be opened and read,” ante , at 14
(emphasis added). Nevertheless, the Court justifies its redrafting
of Arkansas’ notice statute on the ground that “[its] approach[es]
would increase the likelihood that the owner would be notified that
he was about to lose his property … .” Ibid. That, however, is not the test; indeed, we rejected such reasoning
in Dusenbery . See 534 U. S., at 171 (rejecting the
argument that “the FBI’s notice was constitutionally flawed because
it was ‘substantially less likely to bring home notice’ than a
feasible substitute” (citations omitted)).

															   The Court’s suggestion that Arkansas post
notice is similarly unavailing. The State’s records are organized
by legal description, not address, which makes the prospect of
physically locating tens of thousands of properties every year, and
posting notice on each, impractical. See Tsann Kuen Enterprises
Co. , supra, at 119–120, 129 S. W. 3d, at 828. Also,
this Court has previously concluded that posting is an inherently
unreliable method of notice. See G reene v. Lindsey , 456 U. S. 444 , 453–454
(1982).

															   Similarly, addressing the mail to “occupant,”
see ante, at 13, is no more reasonably calculated to reach
petitioner. It is sheer speculation to assume, as the Court does,
that although “[o]ccupants . . . might disregard a certified mail
slip … , a letter addressed to them (even as ‘occupant’) might
be opened and read.” Ante , at 14. It is at least as likely
that an occupant who receives generically addressed mail will
discard it as junk mail.

															III

															   If “title to property should not
depend on [factual] vagaries,” Dusenberry , supra, at 171, then certainly it cannot turn on “wrinkle[s],” ante , at 5, caused by a property owner’s own failure to be
a prudent ward of his interests. The meaning of the Constitution
should not turn on the antics of tax evaders and scofflaws. Nor is
the self-created conundrum in which petitioner finds himself a
legitimate ground for imposing additional constitutional
obligations on the State. The State’s attempts to notify petitioner
by certified mail at the address that he provided and,
additionally, by publishing notice in a local newspaper satisfy due
process. Accordingly, I would affirm the judgment of the Arkansas
Supreme Court. Footnote 1 Though the Court posits that “there is no
record evidence that notices of attempted delivery were left at 717
North Bryan Street,” ante , at 12, the postal carrier was
required to leave notice at the address at each delivery attempt
indicating that delivery of certified mail had been attempted and
that the mail could be retrieved at the local post office. See
United States Postal Operations Manual §813.25 (July 2005),
http://www.nalc.org/depart/can/pdf/manuals/pom/pomc8.pdf (all
Internet materials as visited Apr. 21, 2006, and available in Clerk
of Court’s case file) (“The carrier must leave a notice of arrival
on Form 3849 if the carrier cannot deliver the certifiable article
for any reason”). Footnote 2 The Court found inadequate the State’s
attempt at notice by publication, as if that were the State’s sole method for effectuating notice, see ante , at
16. But the State plainly used it here as a secondary method of notice. Footnote 3 The issue is not, as the Court maintains,
whether the current occupant is “charged with acting as the owner’s
agent.” Ante , at 12. Rather, the issue is whether
petitioner discharged his own duty to guard his
interests. Footnote 4 The Postal Service uses “Moved, Left No
Address” to indicate that the “[A]ddressee moved and filed no
change-of-address order,” and “Not Deliverable as Addressed—Unable
to Forward” to indicate that the mail is “undeliverable at address
given; no change-of-address order on file; forwarding order
expired.” DMM §507, Exh. 1.4.1. Footnote 5 The Court’s “storm drain” hypothetical, ante , at 7–8, presents the harder 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 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. Footnote 6 Interestingly, the Court stops short of
saddling the State with the other steps that petitioner argues a
State should take any time the interested party fails to claim
letters mailed to his record address, see ante , at 14,
namely searching state tax records, the phone-book, the Internet,
department of motor vehicle records, or voting rolls, contacting
his employer, or employing debt collectors. Here, the Court reasons
that because of the context—the fact that the letter was returned
merely “unclaimed” and petitioner had a duty to maintain a current
address—the State is not required to go as far as petitioner urges. Ibid . Though the methods proposed by petitioner are
severely flawed (for instance, the commonality of his surname
“Jones” calls into question the fruitfulness of Internet and
phone-book searches), there is no principled basis for the Court’s
conclusion that petitioner’s other proposed methods would “impos[e]
burdens on the State significantly greater than the several
relatively easy options outlined [by the Court].” Ibid .


U.S. Supreme Court Strauder v. West Virginia, 100
U.S. 303 (1879) Strauder v. West
Virginia 100
U.S. 303 ERROR TO THE SUPREME COURT OF
APPEALS OF THE STATE OF WEST
VIRGINIA Syllabus 1. The Fourteenth Amendment of the Constitution of the United
States considered, and held to be one of a series of
constitutional provisions having a common purpose, namely to secure
to a recently emancipated race, which had been held in slavery
through many generations, all the civil rights that the superior
race enjoy, and to give to it the protection of the general
government, in the enjoyment of such rights, whenever they should
be denied by the States. Whether the amendment had other, and if so
what, purposes not decided.

															2. The amendment not only gave citizenship and the privileges of
citizenship to persons of color, but denied to any State the power
to withhold from them the equal protection of the laws, and
invested Congress with power, by appropriate legislation, to
enforce its provisions.

															3. The amendment, although prohibitory in term, confers by
necessary implication a positive immunity, or right, most valuable
to persons of the colored race -- the right to exemption from
unfriendly legislation against them distinctively as colored --
exemption from discriminations, imposed by public authority, which
imply legal inferiority in civil society, lessen the security of
their rights, and are steps towards reducing them to the condition
of a subject race.

															4. The statute of West Virginia which, in effect, singles out
and denies to colored citizens the right and privilege of
participating in the administration of the law as jurors because of
their color, though qualified in all other respects, is,
practically, a brand upon them, and a discrimination against them
which is forbidden by the amendment. It denies to such citizens the
equal protection of the laws, since the constitution of juries is a
very essential part of the protection which the trial by jury is
intended to secure. The very idea of a jury is that it is a body of
men composed of the peers or equals of the person whose rights it
is selected or summoned to determine; that is, of persons having
the same legal status in society as that which he holds.

															5. Where, as here, the State statute secures to every white man
the right of trial by jury selected from, and without
discrimination against, his race, and at the same time permits or
requires such discrimination against the colored man because of his
race, the latter is not equally protected by law with the
former.

															6. Sect. 41 of the Revised Statutes, which declares that,

															"when any civil suit or criminal prosecution is commenced in any
State court, for any cause whatsoever, against any person who is
denied or cannot enforce in the judicial tribunals of the State, or
in the part of the State where such suit or prosecution is pending,
any right secured to him by any law providing for the equal civil
rights of citizens of the United States, . . . such suit or
prosecution may, upon the petition of such defendant, filed in said
State court, at any time before the trial or final hearing of the
cause, stating the facts and verified by oath, be removed, for
trial, into the next circuit court to be held in the district where
it is pending,"

															considered and held not to be in conflict with the
Constitution of the United States. Page 100 U. S. 304 The facts are stated in the opinion of the court.

															MR. JUSTICE STRONG delivered the opinion of the court.

															The plaintiff in error, a colored man, was indicted for murder
in the Circuit Court of Ohio County in West Virginia, on the 20th
of October, 1874, and, upon trial, was convicted and sentenced. The
record was then removed to the Supreme Court of the State, and
there the judgment of the Circuit Court was affirmed. The present
case is a writ of error to that court, and it is now, in substance,
averred that, at the trial in the State court, the defendant (now
plaintiff in error) was denied rights to which he was entitled
under the Constitution and laws of the United States.

															In the Circuit Court of the State, before the trial of the
indictment was commenced, the defendant presented his petition,
verified by his oath, praying for a removal of the cause into the
Circuit Court of the United States, assigning, as ground for the
removal, that,

															"by virtue of the laws of the State of West Virginia, no colored
man was eligible to be a member of the grand jury or to serve on a
petit jury in the State; that white men are so eligible, and that,
by reason of his being a colored man and having been a slave, he
had reason to believe, and did believe, he could not have the full
and equal benefit of all laws and proceedings in the State of West
Virginia for the security of his person as is enjoyed by white
citizens, and that he had less chance of enforcing in the courts of
the State his rights on the prosecution, as a citizen of the United
States, and that the probabilities of a denial of them to him as
such citizen on every trial which might take place on the
indictment in the courts of the State were much more enhanced than
if he was a white man."

															This petition was denied by the State court, and the cause was
forced to trial.

															Motions to quash the venire "because the law under which Page 100 U. S. 305 it was issued was unconstitutional, null, and void," and
successive motions to challenge the array of the panel, for a new
trial, and in arrest of judgment were then made, all of which were
overruled and made by exceptions part of the record.

															The law of the State to which reference was made in the petition
for removal and in the several motions was enacted on the 12th of
March, 1873 (Acts of 18778, p. 102), and it is as follows:

															"All white male persons who are twenty-one year of age and who
are citizens of this State shall be liable to serve as jurors,
except as herein provided."

															The persons excepted are State officials.

															In this court, several errors have been assigned, and the
controlling question underlying them all are, first, whether, by
the Constitution and laws of the United States, every citizen of
the United States has a right to a trial of an indictment against
him by a jury selected and impaneled without discrimination against
his race or color, because of race or color, and, second, if he has
such a right and is denied its enjoyment by the State in which he
is indicted, may he cause the case to be removed into the Circuit
Court of the United States?

															It is to be observed that the first of these questions is not
whether a colored man, when an indictment has been preferred
against him, has a right to a grand or a petit jury composed in
whole or in part of persons of his own race or color, but it is
whether, in the composition or selection of juror by whom he is to
be indicted or tried, all persons of his race or color may be
excluded by law solely because of their race or color, so that by
no possibility can any colored man sit upon the jury.

															The questions are important, for they demand a construction of
the recent amendment of the Constitution. If the defendant has a
right to have a jury selected for the trial of his case without
discrimination against all persons of his race or color, because of
their race or color, the right, if not created, is protected by
those amendments and the legislation of Congress under them. The
Fourteenth Amendment ordains that

															"all persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the State wherein they reside. No State shall make
or Page 100 U. S. 306 enforce any laws which shall abridge the privilege or immunities
of citizens of the United States, nor shall any State deprive any
person of life, liberty, or property without due process of law,
nor deny to any person within its jurisdiction the equal protection
of the laws."

															This is one of a series of constitutional provisions having a
common purpose -- namely, securing to a race recently emancipated,
a race that, through many generations, had been held in slavery,
all the civil rights that the superior race enjoy. The true spirit
and meaning of the amendments, as we said in the Slaughterhouse
Cases , 16 Wall. 36, cannot be understood without
keeping in view the history of the times when they were adopted and
the general objects they plainly sought to accomplish. At the time
when they were incorporated into the Constitution, it required
little knowledge of human nature to anticipate that those who had
long been regarded as an inferior and subject race would, when
suddenly raised to the rank of citizenship, be looked upon with
jealousy and positive dislike, and that State laws might be enacted
or enforced to perpetuate the distinctions that had before existed.
discriminations against them had been habitual. It was well known
that, in some States, laws making such discrimination then existed,
and others might well be expected. The colored race, as a race, was
abject and ignorant, and in that condition was unfitted to command
the respect of those who had superior intelligence. Their training
had left them mere children, and, as such, they needed the
protection which a wise government extend to those who are unable
to protect themselves. They especially needed protection against
unfriendly action in the States where they were resident. It was in
view of these considerations the Fourteenth Amendment was framed
and adopted. It was designed to assure to the colored race the
enjoyment of all the civil rights that, under the law, are enjoyed
by white persons, and to give to that race the protection of the
general government in that enjoyment whenever it should be denied
by the States. It not only gave citizenship and the privileges of
citizenship to persons of color, but it denied to any State the
power to withhold from them the equal protection of the laws, and
authorized Congress to enforce its provisions Page 100 U. S. 307 by appropriate legislation. To quote the language used by us in
the Slaughterhouse Cases, "No one can fail to be impressed with the one pervading purpose
found in all the amendments, lying at the foundation of each, and
without which none of them would have been suggested -- we mean the
freedom of the slave race, the security and firm establishment of
that freedom, and the protection of the newly made freeman and
citizen from the oppressions of those who had formerly exercised
unlimited dominion over them."

															So again:

															"The existence of laws in the States where the newly emancipated
negroes resided which discriminated with gross injustice and
hardship against them as a class was the evil to be remedied, and,
by it [the Fourteenth Amendment], such laws were forbidden. If,
however, the States did not conform their laws to its requirements,
then, by the fifth section of the article of amendment, Congress
was authorized to enforce it by suitable legislation."

															And it was added,

															"We doubt very much whether any action of a State not directed
by way of discrimination against the negroes as a class will ever
be held to come within the purview of this provision."

															If this is the spirit and meaning of the amendment, whether it
means more or not, it is to be construed liberally to carry out the
purposes of its framers. It ordains that no State shall make or
enforce any laws which shall abridge the privileges or immunities
of citizens of the United States (evidently referring to the newly
made citizens, who, being citizens of the United States, are
declared to be also citizens of the State in which they reside). It
ordains that no State shall deprive any person of life, liberty, or
property without due process of law, or deny to any person within
its jurisdiction the equal protection of the laws. What is this but
declaring that the law in the States shall be the same for the
black as for the white; that all persons, whether colored or white,
shall stand equal before the laws of the States, and, in regard to
the colored race, for whose protection the amendment was primarily
designed, that no discrimination shall be made against them bar law
because of their color? The words of the amendment, it is true, are
prohibitory, but they contain a necessary implication of a positive
immunity, or right, most valuable to the Page 100 U. S. 308 colored race -- the right to exemption from unfriendly
legislation against them distinctively as colored -- exemption from
legal discriminations, implying inferiority in civil society,
lessening the security of their enjoyment of the rights which
others enjoy, and discriminations which are steps towards reducing
them to the condition of a subject race.

															That the West Virginia statute respecting juries -- the statute
that controlled the selection of the grand and petit jury in the
case of the plaintiff in error -- is such a discrimination ought
not to be doubted. Nor would it be if the persons excluded by it
were white men. If, in those States where the colored people
constitute a majority of the entire population, a law should be
enacted excluding all white men from jury service, thus denying to
them the privilege of participating fully with the blacks in the
administration of justice, we apprehend no one would be heard to
claim that it would not be a denial to white men of the equal
protection of the laws. Nor, if a law should be passed excluding
all naturalized Celtic Irishmen, would there be any doubt of its
inconsistency with the spirit of the amendment. The very fact that
colored people are singled out and expressly denied by a statute
all right to participate in the administration of the law as jurors
because of their color, though they are citizens and may be in
other respects fully qualified, is practically a brand upon them
affixed by the law, an assertion of their inferiority, and a
stimulant to that race prejudice which is an impediment to securing
to individuals of the race that equal justice which the law aims to
secure to all others.

															The right to a trial by jury is guaranteed to every citizen of
West Virginia by the Constitution of that State, and the
constitution of juries is a very essential part of the protection
such a mode of trial is intended to secure. The very idea of a jury
is a body of men composed of the peers or equals of the person
whose rights it is selected or summoned to determine -- that is, of
his neighbors, fellows, associates, persons having the same legal
status in society as that which he holds. Blackstone, in his
Commentaries, says,

															"The right of trial by jury, or the country, is a trial by the
peers of every Englishman, and is the grand bulwark of his
liberties, and is secured to him by Page 100 U. S. 309 the Great Charter."

															It is also guarded by statutory enactments intended to make
impossible what Mr. Bentham called "packing juries." It is well
known that prejudices often exit against particular classes in the
community which sway the judgment of jurors and which therefore
operate in some cases to deny to persons of those classes the full
enjoyment of that protection which others enjoy. Prejudice in a
local community is held to be a reason for a change of venue. The
framers of the constitutional amendment must have known full well
the existence of such prejudice and its likelihood to continue
against the manumitted slaves and their race, and that knowledge
was doubtless a motive that led to the amendment. By their
manumission and citizenship, the colored race became entitled to
the equal protection of the laws of the States in which they
resided, and the apprehension that, through prejudice, they might
be denied that equal protection, that is, that there might be
discrimination against them, was the inducement to bestow upon the
national government the power to enforce the provision that no
State shall deny to them the equal protection of the laws. Without
the apprehended existence of prejudice, that portion of the
amendment would have been unnecessary, and it might have been left
to the States to extend equality of protection.

															In view of these considerations, it is hard to see why the
statute of West Virginia should not be regarded as discriminating
against a colored man when he is put upon trial for an alleged
criminal offence against the State. It is not easy to comprehend
how it can be said that, while every white man is entitled to a
trial by a jury selected from persons of his own race or color, or,
rather, selected without discrimination against his color, and a
negro is not, the latter is equally protected by the law with the
former. Is not protection of life and liberty against race or color
prejudice a right, a legal right, under the constitutional
amendment? And how can it be maintained that compelling a colored
man to submit to a trial for his life by a jury drawn from a panel
from which the State has expressly excluded every man of his race,
because of color alone, however well qualified in other respects,
is not a denial to him of equal legal protection? Page 100 U. S. 310 We do not say that, within the limits from which it is not
excluded by the amendment, a State may not prescribe the
qualifications of its jurors, and, in so doing, make
discriminations. It may confine the selection to males, to
freeholders, to citizens, to persons within certain ages, or to
persons having educational qualifications. We do not believe the
Fourteenth Amendment was ever intended to prohibit this. Looking at
its history, it is clear it had no such purpose. Its aim was
against discrimination because of race or color. As we have said
more than once, its design was to protect an emancipated race, and
to strike down all possible legal discriminations against those who
belong to it. To quote further from 16 Wall., supra: "In giving construction to any of these article [amendments], it
is necessary to keep the main purpose steadily in view. . . . It is
so clearly a provision for that race and that emergency that a
strong case would be necessary for its application to any
other."

															We are not now called upon to affirm or deny that it had other
purposes.

															The Fourteenth Amendment makes no attempt to enumerate the
rights it designed to protect. It speaks in general terms, and
those are as comprehensive as possible. Its language is
prohibitory, but every prohibition implies the existence of rights
and immunities, prominent among which is an immunity from
inequality of legal protection either for life, liberty, or
property. Any State action that denies this immunity to a colored
man is in conflict with the Constitution.

															Concluding, therefore, that the statute of West Virginia,
discriminating in the selection of jurors, as it does, against
negroes because of their color, amounts to a denial of the equal
protection of the laws to a colored man when he is put upon trial
for an alleged offence against the State, it remains only to be
considered whether the power of Congress to enforce the provisions
of the Fourteenth Amendment by appropriate legislation is
sufficient to justify the enactment of sect. 641 of the Revised
Statutes.

															A right or an immunity, whether created by the Constitution or
only guaranteed by it, even without any express delegation of
power, may be protected by Congress. Prigg
v. The Commonwealth of Pennsylvania , 16 Pet. 539.
So, in Page 100 U. S. 311 United States v. Reese, 92 U. S.
214 , it was aid by the Chief Justice of this court:

															"Rights and immunities created by or dependent upon the
Constitution of the United States can be protected by Congress. The
form and manner of the protection may be such as Congress, in the
legitimate exercise of its legislative discretion, shall provide.
These may be varied to meet the necessities of the particular right
to be protected."

															But there is express authority to protect the rights and
immunities referred to in the Fourteenth Amendment, and to enforce
observance of them by appropriate congressional legislation. And
one very efficient and appropriate mode of extending such
protection and securing to a party the enjoyment of the right or
immunity is a law providing for the removal of his case from a
State court, in which the right is denied by the State law, into a
Federal court, where it will be upheld. This is an ordinary mode of
protecting rights and immunities conferred by the Federal
Constitution and laws. Sect. 641 is such a provision. It enacts
that

															"when any civil suit or criminal prosecution is commenced in any
State court for any cause whatsoever against any person who is
denied, or cannot enforce, in the judicial tribunals of the State,
or in the part of the State where such prosecution is pending, any
right secured to him by any law providing for the equal civil
rights of citizens of the United States, or of all persons within
the jurisdiction of the United States, such suit or prosecution
may, upon the petition of such defendant, filed in said State court
at any time before the trial, or final hearing of the case, stating
the facts, and verified by oath, be removed before trial into the
next Circuit Court of the United States to be held in the district
where it is pending."

															This act plainly has reference to sects. 1977 and 1978 of the
statutes which partially enumerate the rights and immunities
intended to be guaranteed by the Constitution, the first of which
declares that

															"all persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, Page 100 U. S. 312 pains, penalties, taxes, licenses, and exactions of every kind,
and to no other."

															This act puts in the form of a statute what had been
substantially ordained by the constitutional amendment. It was a
step towards enforcing the constitutional provisions. Sect. 641 was
an advanced step, fully warranted, we think, by the fifth section
of the Fourteenth Amendment.

															We have heretofore considered and affirmed the constitutional
power of Congress to authorize the removal from State courts into
the circuit courts of the United States, before trial, of criminal
prosecutions for alleged offences against the laws of the State
when the defence presents a Federal question or when a right under
the Federal Constitution or laws is involved. Tennessee v.
Davis, supra, p. 100 U. S. 267 .
It is unnecessary to repeat what we there said.

															That the petition of the plaintiff in error, filed by him in the
State court before the trial of his case, made a case for removal
into the Federal Circuit Court under sect. 641 is very plain if, by
the constitutional amendment and sect. 1977 of the Revised
Statutes, he was entitled to immunity from discrimination against
him in the selection of jurors because of their color, as we have
endeavored to show that he was. It set forth sufficient facts to
exhibit a denial of that immunity, and a denial by the statute law
of the State.

															There was error, therefore, in proceeding to the trial of the
indictment against him after his petition was filed as also in
overruling his challenge to the array of the jury and in refusing
to quash the panel.

															The judgment of the Supreme Court of West Virginia will be
reversed, and the case remitted with instructions to reverse the
judgment of the Circuit Court of Ohio county, and it is So ordered. MR. JUSTICE FIELD.

															I dissent from the judgment of the court in this case on the
grounds stated in my opinion in Ex parte Virginia ( infra, p. 100 U. S.
349 ), aud MR. JUSTICE CLIFFORD concurs with me.