1. Required Scope of Insanity Defense.--Since M'Naghten's Case, (1) common law courts have recognized the need to take account of mental illness in assessing criminal responsibility. Precisely how to go about this accounting has long been a matter of debate, and American jurisdictions have adopted a variety of formulations. (2) In a federal system, a question naturally arises: does "fundamental fairness" (3) require states' criminal laws to include some baseline recognition of mental illness to comport with the Due Process Clause? Last Term, in Clark v. Arizona, (4) the Supreme Court concluded that Arizona's abbreviated form of the M'Naghten test for insanity was consistent with due process. (5) The Court also held that Arizona's rule prohibiting consideration of evidence of mental illness in determining the presence of the requisite mens rea did not violate due process. (6) In doing so, the Court advanced thin countervailing concerns that ultimately are insufficient to outweigh defendants' due process rights, revealing a deep skepticism of contemporary psychiatry.
During the early hours of June 21, 2000, Eric Clark repeatedly drove around a residential block in Flagstaff, Arizona, blaring loud music, which caused residents to alert the police. (7) When Flagstaff police officer Jeffrey Moritz responded and stopped Clark's vehicle, Clark shot and killed him. (8) Clark was subsequently arrested and charged with first-degree murder for intentionally or knowingly killing a law enforcement officer in the line of duty. (9) The court initially found Clark incompetent to stand trial, but, after he was treated for two years at a psychiatric facility, the court deemed his competence restored and his case proceeded to trial. (10)
At trial, Clark did not deny that he had shot and killed Moritz, but instead presented evidence of his paranoid schizophrenia to negate his responsibility for the crime under two theories. First, he relied upon an insanity defense, claiming that "at the time of the commission of the criminal act [he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong." (11) Second, he claimed that as a result of his mental illness, he lacked the requisite mens rea because he did not act "intentionally or knowingly to kill a law enforcement officer." (12)
Relying on State v. Mott, (13) an Arizona Supreme Court decision that disallowed the use of psychiatric testimony to disprove specific intent, (14) the trial court ruled that "Arizona does not allow evidence of a defendant's mental disorder short of insanity ... to negate the mens rea element of a crime." (15) The trial court further found that, although Clark clearly suffered from paranoid schizophrenia, his evidence was insufficient to show that the illness "distort[ed] his perception of reality so severely that he did not know his actions were wrong." (16) The court entered a special verdict of first-degree murder and sentenced Clark to life imprisonment with no possibility of parole for twenty-five years. (17)
Clark moved to vacate the judgment and sentence, contending that Arizona's insanity test violated due process because it omitted the first prong of the two-part M'Naghten test. (18) Clark also argued that the Mott rule's blanket exclusion of expert psychiatric evidence to rebut the prosecution's proof of the requisite mental state denied him the right to present a complete defense and thus violated due process. (19) The trial court denied the motion. (20)
The Court of Appeals of Arizona affirmed. As to the insanity test, the court noted that the State had discretion to decide not just the scope of such a test, but even whether to recognize an insanity defense at all. (21) The court also held that Mott presented no constitutional problem and upheld its application to Clark's case. (22) The Supreme Court of Arizona denied further review, and Clark petitioned for certiorari. (23)
The Supreme Court affirmed. Justice Souter, writing for the majority, (24) held that due process does not preclude Arizona from framing its insanity test solely in terms of the defendant's capacity to determine whether the alleged criminal act was wrong, nor does it require Arizona to allow the defendant to introduce expert psychiatric testimony regarding his capacity to form the requisite intent. After surveying the multiple formulations of the insanity test currently in effect, the Court concluded that "[h]istory shows no deference to M'Naghten that could elevate its formula to the level of fundamental principle, so as to limit the traditional recognition of a State's capacity to define crimes and defenses." (25) Further, the majority noted that Arizona's abbreviated test was just as constitutional as the longer M'Naghten formulation because, despite the lack of explicit recognition, "evidence going to cognitive incapacity has the same significance under [Arizona's] form as it had under [M'Naghten]." (26) Indeed, if a defendant does not perceive the "nature and quality" of an act, then he cannot reasonably perceive that the act is "wrong." A showing of cognitive incapacity is therefore a sufficient, but not necessary, condition for a showing of moral incapacity, and all evidence to that end remains admissible. (27)
In response to Clark's claim that the Mott rule disallowing expert psychiatric testimony to rebut mens rea violated due process, the Court articulated three "categories of evidence with a potential bearing on mens rea" (28): first, "observation evidence," consisting of "testimony from those who observed what Clark did and heard what he said," including "testimony that an expert witness might give about Clark's tendency to think in a certain way and his behavioral characteristics"; (29) second, "mental-disease evidence," consisting of "opinion testimony that Clark suffered from a mental disease with features described by the witness"; (30) and third, "capacity evidence" that speaks to Clark's "capacity for cognition and moral judgment." (31) In the Court's reading, Mott restricted only mental-disease evidence and capacity evidence, leaving defendants free to present observation evidence. (32) The majority acknowledged that, in Clark's case, the trial court's restriction may have covered some legitimate observation evidence. (33) However, the Court read Clark's objections as limited to the exclusion of mental-disease and capacity evidence, and therefore the question whether observation evidence was improperly excluded was not before the Court. (34)
In considering whether the Mott rule violated due process, the Court concluded that Arizona's "reasons for requiring [mental-disease and capacity evidence] to be channeled and restricted [to the insanity defense inquiry] are good enough to satisfy the standard of fundamental fairness that due process requires." (35) Arizona has the authority to define legal insanity and to place the burden of persuasion on defendants if it so chooses, and a requirement that mental-disease or capacity evidence be admitted on a different issue with a lower burden of persuasion would undermine that authority. (36) In response to the dissent's objection that Arizona's rule blocks the defendant's ability to respond fully to evidence of an element of the crime, the Court highlighted "the controversial character of some categories of mental disease, ... the potential of mental-disease evidence to mislead, and ... the danger of according greater certainty to capacity evidence than experts claim for it" as factors that outweigh the potential probative value of mental-disease and capacity evidence in rebutting mens rea and thus justify its exclusion. (37)
Justice Breyer concurred in part and dissented in part. While agreeing with the Court's categorization of the three types of evidence and the constitutionally permissible scope of exclusion for each, he expressed concern that the distinction among the categories would be unclear in some cases and that lower courts had not focused on that distinction. (38) He therefore would have remanded the case to the Arizona courts to determine whether Arizona law was consistent with the Supreme Court's distinction and whether the trial court properly applied the law. (39)
Justice Kennedy dissented. (40) In his view, "the Court [was] incorrect in holding that Arizona may convict ... Clark of first-degree murder for the intentional or knowing killing of a police officer when Clark was not permitted to introduce critical and reliable evidence showing he did not have that intent or knowledge." (41) Justice Kennedy objected to the "restructured evidentiary universe" invented by the majority. (42) In his view, the sharp theoretical distinctions the majority drew between "observation evidence," on the one hand, and "mental-disease evidence" and "capacity evidence," on the other, were less determinate in application. In the case of an individual who undeniably had paranoid schizophrenia, "[i]t makes little sense to divorce the observation evidence from the explanation that makes it comprehensible"--namely, expert psychiatric testimony. (43) Even if the Court's evidentiary categorization were feasible, Justice Kennedy argued, the Court was incorrect to narrow Clark's claim "to exclude any concern about observation evidence," for such a construction relied on an excessively narrow interpretation of ambiguities, when in fact Clark had consistently pled broadly. (44)
The dissent also rejected the Court's treatment of mental-illness evidence "as concerning only 'judgment,' rather than fact," because the mens rea of intent or knowledge is a truly factual issue: "Either Clark knew he was killing a police officer or he did not." (45) If he did not, he "need[ed] no excuse, as then he did not commit the crime as Arizona defines it." (46) Justice Kennedy considered Arizona's Mott rule problematic because "it excludes evidence no matter how credible and material it may be in disproving an element of the offense." (47) Further, he viewed Arizona's reasons for the rule as "insufficient to support [the] categorical exclusion" of such evidence (48): the potential unreliability of testimony regarding mental illness is sufficiently addressed through general rules barring unreliable or speculative testimony, and the risk of jury confusion fails to justify the rule given the U.S. system's general trust of juries to sort through complex factual issues. (49) Further, the type of mental illness at issue in this case was well documented, and experts generally agreed on its definition and manifestations, thus lessening the likelihood of jury confusion. (50) "It is striking," Justice Kennedy noted, "that while the Court discusse[d] at length the likelihood of misjudgment from placing too much emphasis on evidence of mental illness, it ignore[d] the risk of misjudging an innocent man guilty from refusing to consider this highly relevant evidence at all." (51)
It is a fundamental principle of American jurisprudence that the prosecution must prove all elements of a crime beyond a reasonable doubt to overcome a defendant's presumed innocence. (52) Such a burden could prove meaningless if the defendant did not have a corresponding right to present evidence to rebut the prosecution's case. This right is not without limits: state and federal rules of evidence strive to ensure that evidence presented to the jury--particularly evidence coming from experts--is reliable and relevant. (53) But exceptions to the general right to present rebuttal evidence must be grounded in a justifiable concern such as "unfair prejudice, confusion of the issues, or potential to mislead the jury" that outweighs the evidence's potential probative value, and they may not be "disproportionate to the ends that they are asserted to promote." (54)
Arizona's first-degree murder statute requires that the accused act with mens rea equivalent to specific intent. Yet Mott instituted a per se bar on consideration of expert psychiatric testimony on the question whether a defendant possessed the requisite intent, (55) regardless of such testimony's reliability or materiality. (56) Expert psychiatric evidence was thus relegated to the affirmative defense of insanity. (57) It is insufficient to say, as the Clark Court did, that consideration of expert psychiatric testimony is "channeled" to the affirmative insanity defense inquiry; the underlying questions, as well as the burden of proof, in the mens rea and insanity defense inquiries are distinct. Moreover, it is unclear how channeling the testimony to an affirmative defense alleviates the concerns that purportedly underlie Arizona's rule--other than by blocking the evidence through an impermissible shift of the burden of proof. Justification for the rule, then, can come only from a weighing of concerns regarding the evidence against its probative value. In Clark, the Court identified several factors upon which Arizona could rely to justify its procedural scheme: the "controversial character of some categories of mental disease," the potential for such evidence to "mislead" the jury, and the "danger of according greater certainty" to expert psychiatric evidence than is warranted. (58) Even if these concerns are legitimate, banning all psychiatric evidence concerning mens rea is disproportionate to the ends sought and thus runs counter to due process. Hence, the Court's support of Arizona's ban seems to reflect a concern beyond those stated--namely, a deep and unwarranted skepticism of contemporary psychiatry.
The Court's first concern--that some categories of mental disease are controversial--is insufficient to justify the bar on expert psychiatric evidence on mens rea for two reasons: the concern is not applicable in cases such as Clark in which the psychiatric claims at issue are widely accepted, and the rules of evidence adequately cover cases in which the concern is applicable. Clark demonstrates that even if concerns regarding the controversial nature of some mental diseases were well founded, wholesale exclusion of psychiatric evidence concerning mens rea is an overinclusive and disproportionate response. Contrary to popular impressions, the bulk of expert psychiatric evidence presented at criminal trials does not concern novel, controversial theories, but is routine testimony on more common and generally accepted mental diseases such as schizophrenia. (59) For example, paranoid schizophrenia, the disease at issue in Clark, ranks among the least controversial and best understood of mental diseases, (60) and it was uncontested that Clark suffered from the disease at the time of the killing. (61) To deprive Clark and others like him of the right to present reliable and relevant evidence out of concern for controversy in a minority of cases runs counter to the due process rights of a majority of defendants.
Arizona's overinclusive rule is all the more inappropriate given that the State's existing rules of evidence are sufficient to block testimony concerning particularly controversial categories of mental disease. Some theories of mental disease presented at trial are truly contentious in character. (62) These diseases, such as the "abuse excuse" and "urban survival syndrome," have not achieved general acceptance among the scientific community or among society at large. (63) Reluctance to rely upon novel scientific theories in criminal cases is prudent. The impetus of the concern, however, does not differ between psychiatric evidence and other forms of expert evidence, such as DNA testing techniques, which have been approved for use at trial. (64) Arizona has developed methods of vetting innovative scientific approaches through its general evidentiary scheme, which allows expert testimony only when it will "assist the trier of fact to understand the evidence or to determine a fact in issue." (65) Further, Arizona courts have adopted the rule developed in Frye v. United States, (66) which allows the admission of evidence concerning a novel scientific theory or process only if it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." (67)
The Court's second and third concerns regarding psychiatric evidence--its potential to mislead jurors and to create an impression of greater certainty about the defendant's state of mind than is medically possible--are also unwarranted. The most significant reason why these concerns fail to justify the bar on expert psychiatric evidence is that Arizona's solution runs counter to its supposed purpose. Both of these concerns presumably center on ensuring accuracy in jury determinations--undoubtedly a legitimate aim of the criminal justice system. Yet the Court's skepticism of psychiatry has led it to create a regime in which jurors are asked to make factual determinations on matters beyond their experience without the guidance of experts whose knowledge, while imperfect, is still the most accurate our society has to offer. (68) Arizona's regime, as understood and approved by the Court, allows "observation evidence" concerning a defendant's behavioral tendencies, including observations made by psychiatric experts, yet testimony that explains abnormal behavior through comparison to others with like symptoms--that is, through diagnosis--is impermissible. (69) To forbid the jury from considering such evidence "is to blind the trier of fact to relevant, reliable, non-prejudicial evidence and to produce false factual findings in some cases." (70) Juries' factual conclusions become odd legal fictions insulated from the outside world. Accuracy is lost, not gained.
Furthermore, the Court exaggerated the extent to which psychiatric evidence would have the potential to mislead or inspire overreliance by the jury absent the Mott rule. Mechanisms are in place within Arizona's general evidentiary scheme to ensure that misleading evidence or evidence that might inspire overreliance is not admitted. According to Arizona Rule of Evidence 403, evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." (71) In addition, neither Arizona nor the Court has reason to fear that jurors will rely excessively on expert psychiatric opinion. Post-trial surveys of jurors reveal, if anything, greater--or at least more candid--skepticism of expert psychiatric testimony than that exhibited by the Clark Court. (72)
Together, the insubstantiality of the Court's professed reasons for allowing the Mott rule to stand and comments regarding psychiatry throughout the Court's opinion point to a deep skepticism of expert psychiatric opinion as the true driving force behind the Court's holding. The Clark Court implied that there is something inherently tenuous about psychiatry that makes evidence concerning it, as opposed to other scientific disciplines, per se excludable as unreliable. In support of its view, the Court quoted the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders: "[The manual] reflects a consensus about the classification and diagnosis of mental disorders derived at the time of its initial publication. New knowledge generated by research or clinical experience will undoubtedly lead to an increased understanding of the disorders...." (73) Yet this statement applies to any scientific discipline: it reflects the ongoing search for knowledge that is at the core of scientific inquiry. Although psychiatry may have begun on more questionable scientific footing than some other disciplines, recent advances in psychiatric research have brought many common psychiatric diagnoses to a level of reliability on par with that of "radiologists' interpretations of mammograms and the assessment of spasticity in patients with spinal cord injury." (74)
The Clark Court also pointed to disagreement among experts as evidence of psychiatry's unreliable nature. "The limits of the utility of a professional disease diagnosis," the Court observed, "are evident in the dispute between the two testifying experts in this case; they agree that Clark was schizophrenic, but they come to opposite conclusions on whether the mental disease in his particular case left him bereft of cognitive or moral capacity." (75) Critics of psychiatric evidence often point to this perceived "battle of the experts" as proof of psychiatry's malleability and its uselessness in court. (76) "[B]ut all court proceedings involve contradictory testimony." (77) As psychiatrist Jacques Quen notes in his discussion of determination of responsibility for the insane:
As for the "battle of experts," I confess that I've never been able to understand why, when psychiatrists disagree, it is proof positive that they don't know what they're talking about and it demeans the profession; while, when our Supreme Court decides the law of the land by a disagreement of 5-4, they are scholars dealing with profound, difficult, and complicated issues and one must respect their differences in judgment. (78)
Disagreement at the margins is inherent in any discipline. If the courts' goal is accurate factfinding, then it is preferable to work through the apparent ambiguities of competing expert psychiatric opinions as revealed in the adversarial process than to rely solely on the unguided interpretations of the lay juror.
Due process requires that defendants be afforded the opportunity to present relevant, reliable evidence to rebut the prosecution's case on all elements of a crime, absent countervailing factors that outweigh the evidence's probative value. The countervailing factors that Arizona asserted are insufficient to warrant per se exclusion of psychiatric evidence on the question of mens rea. Ultimately, Arizona's rule, and the Court's endorsement of it, are understandable only through recognition of the judiciary's deep skepticism of psychiatry. Both to ensure defendants' rights and to ensure accuracy in jury determinations of guilt or innocence, the courts must strive to parse psychiatric evidence more finely, carefully sifting the useful from the misleading without dismissing a scientific discipline wholesale.
(1) (1843) 8 Eng. Rep. 718 (H.L.).
(2) Seventeen states and the federal government follow the test laid out in M'Naghten's Case. Clark v. Arizona, 126 S. Ct. 2709, 2720 (2006). Eleven have adopted only one of its two prongs, and eighteen have adopted amalgams of the M'Naghten test and other formulations. See id. at 2720-21. The remaining four states do not recognize an insanity defense but, along with a number of states that do recognize the defense, consider evidence of mental illness in determining whether a defendant possessed the requisite intent for the crime. Id. at 2721-22.
(3) Lisenba v. California, 314 U.S. 219, 236 (1941). Lisenba held that "[a]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice." Id.
(4) 126 S. Ct. 2709.
(5) Id. at 2716.
(9) Id. (citing ARIZ. REV. STAT. ANN. [section] 13-1105(A)(3) (Supp. 2005)). The statutory provision under which Clark was charged required that he "[i]ntend or know that [his] conduct w[ould] cause death to a law enforcement officer." [section] 13-1105(A)(3); Clark, 126 S. Ct. at 2716.
(10) Clark, 126 S. Ct. at 2716.
(11) Id. at 2717 (alterations in original) (quoting ARIZ. REV. STAT. ANN. [section] 13-502(A) (2001)) (internal quotation marks omitted).
(13) 931 P.2d 1046 (Ariz. 1997) (en banc).
(14) See id. at 1051.
(15) Clark, 126 S. Ct. at 2717 (omission in original) (quoting Mott, 931 P.2d at 1051) (internal quotation marks omitted).
(16) Id. at 2718 (quoting Joint Appendix, Clark (No. 05-5966), 2006 WL 282161, at *334) (internal quotation mark omitted).
(18) Id. M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.), held that a defendant attempting to establish a defense of insanity must prove that, at the time of the criminal act, he "was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." Id. at 722. The Arizona rule allows an insanity defense if the defendant "was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong," ARIZ. REV. STAT. ANN. [section] 13-502(A) (2001), and thus omits the "nature and quality of the act" prong of the M'Naghten test. See Clark, 126 S. Ct. at 2718-19.
(19) Clark, 126 S. Ct. at 2718.
(24) Justice Souter was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito.
(25) Clark, 126 S. Ct. at 2719.
(26) Id. at 2722.
(27) See id.
(28) Id. at 2724.
(29) Id. (internal quotation marks omitted).
(30) Id. at 2725 (internal quotation marks omitted).
(31) Id. (internal quotation marks omitted).
(32) Id. at 2726.
(34) See id. at 2726-29.
(35) Id. at 2732.
(36) See id. at 2732-33.
(37) Id. at 2734.
(38) See id. at 2737-38 (Breyer, J., concurring in part and dissenting in part).
(39) Id. at 2738.
(40) Justice Kennedy was joined by Justices Stevens and Ginsburg.
(41) Clark, 126 S. Ct. at 2738 (Kennedy, J., dissenting).
(43) Id. at 2739.
(45) Id. at 2743.
(47) Id. at 2744.
(49) See id. at 2745.
(50) See id. at 2745-46.
(51) Id. at 2746 (citation omitted).
(52) See In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.").
(53) See, e.g., FED. R. EVID. 403, 702-704; ARIZ. R. EVID. 403, 702.
(54) Holmes v. South Carolina, 126 S. Ct. 1727, 1732 (2006).
(55) See State v. Mott, 931 P.2d 1046, 1051, 1054-55 (Ariz. 1997) (en banc).
(56) See id. at 1067 (Feldman, J., dissenting) ("The majority opinion categorically prohibits competent, credible, and relevant evidence that directly addresses the elements and different degrees of the offense with which Defendant was charged.").
(57) See id. at 1051 (majority opinion).
(58) Clark, 126 S. Ct. at 2734.
(59) See Christopher Slobogin, Psychiatric Evidence in Criminal Trials: To Junk or Not To Junk?, 40 WM. & MARY L. REV. 1, 7 (1998).
(60) See id. (describing schizophrenia as a "traditional diagnosis").
(61) See Clark, 126 S. Ct. at 2716.
(62) See Slobogin, supra note 59, at 5-7.
(63) Id. at 1-2 (internal quotation marks omitted).
(64) See State v. Bible, 858 P.2d 1152, 1184-85 (Ariz. 1993) (en banc) (recognizing DNA match techniques as generally accepted by the scientific community and thus allowing admission of their results at trial).
(65) ARIZ. R. EVID. 702.
(66) 293 F. 1013 (D.C. Cir. 1923). For a discussion of Arizona's adoption of the Frye rule, see Bible, 858 P.2d at 1181-83. The Arizona Supreme Court has declined to follow the more recent formulation for determining the admissibility of scientific evidence in federal courts outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Bible, 858 P.2d at 1182-83.
(67) Frye, 293 F. at 1014. Although Arizona courts have shown some reluctance to apply the Frye test outside of the physical sciences, see, e.g., State ex rel. Romley v. Fields, 35 P.3d 82, 86-87 (Ariz. Ct. App. 2001), this reluctance stems from courts' perception that overreliance on expert testimony in other scientific fields is less likely, see id. at 86 (citing 1 JOSEPH M. LIVERMORE ET AL., LAW OF EVIDENCE [section] 702.02, at 279-80 (4th ed. 2000)). To the extent that, in the context of mental-disease and capacity testimony in criminal trials, the Arizona courts are concerned about overreliance on evidence of questionable validity, the Frye test would adequately address that concern.
(68) See Brief Amicus Curiae for the Am. Psychiatric Ass'n et al. Supporting Petitioner at 15, Clark (No. 05-5966), 2006 WL 247277 [hereinafter APA Brief].
(69) See Clark, 126 S. Ct. at 2724-26, 2732; see also id. at 2749 (Kennedy, J., dissenting) ("[T]he State seems to exclude the evidence one would think most reliable by allowing unexplained and uncategorized tendencies to be introduced while excluding relatively well-understood psychiatric testimony regarding well-documented mental illness.").
(70) APA Brief, supra note 68, at 13.
(71) ARIZ. R. EVID. 403.
(72) See, e.g., Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 VA. L. REV. 1109, 1123-44 (1997).
(73) Clark, 126 S. Ct. at 2734 (quoting AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, at xxxiii (4th ed. 2000)).
(74) Joanmarie Ilaria Davoli, Psychiatric Evidence on Trial, 56 SMU L. REV. 2191, 2219 (2003).
(75) Clark, 126 S. Ct. at 2735.
(76) See, e.g., Mark S. Brodin, Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic, 73 U. CIN. L. REV. 867, 939 & n.334 (2005).
(77) Jonas Robitscher & Andrew Ky Haynes, In Defense of the Insanity Defense, 31 EMORY L.J. 9, 44 (1982).
(78) Jacques M. Quen, Isaac Ray and Charles Doe: Responsibility and Justice, in LAW AND THE MENTAL HEALTH PROFESSIONS 235, 247 (Walter E. Barton & Charlotte J. Sanborn eds., 1978), quoted in Robitscher & Haynes, supra note 77, at 44.
2. Tax Sales of Real Property--Notice and Opportunity To Be Heard.--The postman may always ring twice, but that is not enough for the Supreme Court. In recent years, lower courts have reached divergent results in applying the requirements for constitutionally adequate notice set out in the seminal case of Mullane v. Central Hanover Bank. (1) Expanding on the line of cases articulating those requirements, last Term in Jones v. Flowers, (2) the Supreme Court held that when notice of a tax sale is returned unclaimed, the State must take further reasonable steps to attempt to give notice to the owner before selling the property. Because of the nebulous formulations of what constitutes proper notice, Justices in both the majority and dissent purported to adhere to the same longstanding due process principles while reaching opposite results. Further, while advocates of greater procedural due process protections ostensibly won a victory, it was a small one at best, and possibly a step backward. Most states already meet the standard the Court formulated in Flowers, and those that do not may have an incentive to cut back their notice procedures rather than expand them.
For thirty years, while Gary Jones paid the mortgage on his house, the mortgage company paid his property taxes. (3) After Jones paid off the mortgage on the house, in which he no longer resided, he failed to pay his property taxes and Arkansas classified his property as delinquent. (4) The Commissioner of State Lands mailed a certified letter to the property to notify Jones of his tax delinquency; the letter stated that the property would be subject to a public sale if Jones did not pay his taxes within two years. (5) Following three attempts to deliver the letter (6) with nobody answering the door to sign for it, and after the letter had been held for fifteen days at the post office, the postal service returned the letter to the Commissioner marked "unclaimed." (7) Two years later, the State published notice of the public sale in a local newspaper. (8) Having received no bids for months, the State negotiated a private sale with Linda Flowers. (9) Before finalizing the sale, the Commissioner mailed Jones a second certified letter at the property address to inform him that the State would sell his house to Flowers if he did not pay his taxes. (10) Again, the letter was returned to the Commissioner marked "unclaimed." (11) The State sold Flowers the house, and immediately after the thirty-day post-sale redemption period had expired, Flowers had an unlawful detainer notice served on the property. (12) Jones's daughter received it and notified Jones of the sale. (13)
Jones filed suit in Arkansas state court alleging that the Commissioner and Flowers had taken his property without due process because they failed to provide notice of the tax sale and Jones's right to redeem. (14) The trial court held that the State's notice procedure was constitutionally adequate, and the Arkansas Supreme Court affirmed the judgment. (15)
The Supreme Court reversed. Writing for the majority, Chief Justice Roberts (16) ruled 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," and that, in Jones's case, "additional reasonable steps were available to the State." (17) The Court explained that although due process does not require actual notice, the government must 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." (18) Moreover, the means of giving notice "must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (19) The Court concluded that someone desirous of actually informing Jones would have taken further reasonable steps to inform him that his house was subject to a taking after becoming aware that the initial attempt at notice had been unsuccessful. (20)
The Court likened the case to its precedents addressing notice to known prisoners (21) and incompetents, (22) which "required the government to consider unique information about an intended recipient regardless of whether a statutory scheme [was] reasonably calculated to provide notice in the ordinary case." (23) In those cases, the State's attempt at notice was insufficient because it knew of the circumstances that made the notice ineffective before it decided the means by which to provide notice. (24) In contrast, the State in Flowers was not aware of Jones's circumstances before it sent notice. However, the initial notice letter was returned to the State less than three weeks after it had been sent, and the State was not permitted to take the property for two years to give Jones time to redeem it. (25) In response to these facts, the Court reaffirmed the "ex ante principle": "the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc," since a procedure may be adequate though it fails in a specific instance. (26) The Court explained, however, that a state's notice procedure may violate due process because of ex post inaction "if a feature of the State's chosen procedure is that it promptly provides additional information to the government about the effectiveness of notice." (27)
The Court proceeded to describe reasonable steps that were available to Arkansas to provide notice before taking Jones's property. One option entailed the State's resending the notice by regular mail so that the recipient's signature would not have been required. (28) This might have made actual notice more likely because the letter would have been left in the mailbox to be retrieved at any time. (29) Another possibility called for the State "to post notice on the front door, or to address otherwise undeliverable mail to 'occupant.'" (30) The Court considered this more likely to have reached Jones because either he would have become aware of it on the property or a current occupant would have seen it and notified him. (31) Finally, the Court explained that Arkansas's publication of notice was inadequate because it was "reasonably possible or practicable to give more adequate warning." (32)
Justice Thomas dissented, (33) arguing that the meaning of due process "should not turn on the antics of tax evaders and scofflaws." (34) He deemed Arkansas's process "reasonably calculated to inform" Jones of the tax sale. (35) He contended that due process is satisfied when the State attempts to notify a delinquent by certified mail at an address that he has provided and that the minimum requirements are exceeded when the State publishes effective notice in a local newspaper. (36) Justice Thomas then accused the Court of abandoning the ex ante principle as well as the established practice of refusing to assess the reasonableness of the State's chosen method of notice "by comparing it to alternative methods that are identified after the fact." (37) He explained that the Court held Arkansas's notice process unconstitutional based on information that was unavailable to the State when notice was sent and that the Court's suggested methods of notice were "entirely the product of post hoc considerations, including the discovery that members of [Jones's] family continued to live in the house." (38) Distinguishing cases requiring specially tailored notice for prisoners and incompetents, (39) Justice Thomas pointed out that "Arkansas did not know at the time it sent notice to [Jones] that its method would fail." (40) Justice Thomas also read the majority opinion as a departure from the rule in Dusenbery v. United States (41) that due process does not require "actual notice," (42) since "[u]nder 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." (43) Finally, Justice Thomas found the Court's proposed methods of notice to be "burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State." (44)
In Flowers, both the majority and dissent purported to adhere to the same longstanding principles of due process--a consensus made possible because the principles themselves are sufficiently vague and inclusive to accommodate widely divergent applications. (45) However, regardless of the confusion in Flowers over the treatment of Mullane and the scope of the ex ante principle, the effect of the decision will be limited, both doctrinally and practically. Nonetheless, it may provide a preview of Chief Justice Roberts's jurisprudence.
The Court enjoyed unanimity on two principles for assessing the requirements for constitutionally adequate notice. First, the majority and dissenting opinions agreed on the Mullane conceptualization that "[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (46) Second, all eight participating Justices concurred that "the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc." (47) Nonetheless, the Justices were worlds apart in their applications of these principles. This divergence occurred because those principles provide virtually no guidance; they are so malleable and impracticable as to be jurisprudentially useless.
The longstanding Mullane standard suffers from two related infirmities. First, it fails to incorporate the touchstone of the due process inquiry: the balancing of government and individual interests. (48) For example, the test is indifferent to whether the property at issue is valuable, like a house, or comparatively less important. Put another way, whether one is "desirous" of actually delivering a message has nothing to do with the content of the message. The only way around this conclusion is to pack the balancing into the word "reasonably," but Mullane and other Court precedents seem to imply that Mullane reasonableness concerns only the accuracy of the chosen method relative to other normal or customary methods. (49) The language of the Mullane test thus appears irredeemably antagonistic towards balancing. This is what the Dusenbery Court meant when it said that Mullane, rather than Mathews v. Eldridge, (50) the more recent case that sets out the general procedural due process balancing framework, "supplies the appropriate analytical framework" for the evaluation of notice. (51)
Nevertheless, it appears that the Court, in evaluating notice practices since Mullane, has not been tone-deaf to the competing interests involved, even as it has continued to adhere formally to the Mullane formulation in most cases. (52) In Flowers, the balancing that may have silently undergirded the Court's decisions in the past came bubbling to the surface: the Court presented the inquiry as a two-step process involving both the Mullane test and a general balancing test. (53) Indeed, in holding for Jones, the Court relied, seemingly dispositively, on the fact that the case concerned "such an important and irreversible prospect as the loss of a house." (54) Thus, balancing achieved doctrinal primacy in Flowers. Despite the majority's efforts, however, the traditional Mullane test simply cannot be reconciled with a flexible due process inquiry centered on weighing competing individual and government interests, and the Court exposed this by fatally juxtaposing the two. (55) Since the Mullane test was a hollow recitation, it was easy for the majority to invoke it and move on to its real considerations.
The Mullane test suffers from a second shortcoming: it seeks to attribute a standard derived from the behavior of real people to governments. A person who desires to inform another of a piece of information faces entirely different constraints than does a government. (56) On one hand, governments place high premiums on standardized procedures, for instance, while an individual can develop a more ad hoc approach to different cases. On the other hand, governments have more resources at their disposal than the average person and can thus more cheaply alternate between different types of notice. Because of this incongruence between doctrine and reality, it seems unlikely that the Mullane test is significant beyond its rhetorical force.
The ex ante principle stressed by the Flowers dissent and evidently acceded to by the majority is equally untenable. As the majority's careful maneuvering demonstrates, the whole game is in how one defines the proposed government procedure. (57) The dissent claimed that the relevant procedure is sending the notice by certified mail, so any requirement imposed based on subsequent events would violate the ex ante principle. (58) Responding to this argument, the majority described the relevant procedure as sending certified mail and setting up a plan for action if the mail is returned unclaimed. (59) Framed this way, the majority's procedure also satisfies the ex ante principle. Indeed, it seems that virtually any procedure that could respond to the future receipt of new information could satisfy the ex ante principle so long as it is defined with the requisite particularity (for example: certified mail is to be sent and if after the tax sale the taxpayer testifies under oath that he did not receive notice, the tax sale shall be voided). The Court's reliance on these pliant formulations will only create confusion for lower courts and litigants in an area greatly in need of determinate rules to avoid protracted litigation about a peripheral issue. (60)
Notwithstanding the Flowers Court's competing approaches to deep-rooted precedents and its failure to clarify the relevant due process inquiries regarding notice, the decision is closely circumscribed, both doctrinally and practically. (61) The Court's decision is limited doctrinally because whatever duty governments now have to take into account information received after attempting notice but before taking property is capped by the longstanding principle, affirmed in Flowers, (62) that regular mail service is a constitutionally adequate means of providing notice. (63) Although the Court predicted that state governments would continue to have incentives to use certified mail, they can avoid any resultant duties to take additional steps by simply sticking with regular mail--"an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice" (64)--or any other method of notice that is approximately as likely to reach the intended recipient. If Justice Thomas is right that regular mail "is arguably less effective than certified mail," (65) the case may actually lead to fewer procedural due process protections. (66)
Practically, the Court's decision in Flowers is also limited because it does not affect the established notice procedures in most states. The Court said as much in a footnote, listing the "[m]any States [that] 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." (67) Further, most of those states not listed in the opinion already use procedures that are consistent with Flowers. (68) Thus, the decision is unlikely to reverberate through the pages of the Federal Reporter or the halls of state courts.
The decision does, however, offer an early glimpse into how the new Chief Justice may develop his jurisprudence. Chief Justice Roberts broke with fellow conservative Justices Scalia and Thomas, providing the deciding vote in siding with Justices Stevens, Souter, Ginsburg, and Breyer. (69) The conservative Justices may have split because the question could not be resolved clearly by reference to the original understanding, or because the question of what notice is required is so unclear, given the multiple forms of mail available today, that the original understanding has little value. Without that common point of reference, the conservatives may have revealed a divergence in their approaches: while Justices Scalia and Thomas may be inclined to err on the side of judicial restraint, declining to extend the reach of constitutional rights beyond what precedent mandates, (70) Chief Justice Roberts may be inclined to give priority to another favorite conservative cause--private property rights. (71) The extent of this potential methodological split remains to be seen.
(1) 339 U.S. 306 (1950). Compare, e.g., Madewell v. Downs, 68 F.3d 1030, 1035, 1045-47 (8th Cir. 1995), with Plemons v. Gale, 396 F.3d 569, 576 (4th Cir. 2005).
(2) 126 S. Ct. 1708 (2006).
(3) Id. at 1712.
(6) Id. at 1722 (Thomas, J., dissenting).
(7) Id. at 1712 (majority opinion).
(9) Id. at 1712-13.
(10) Id. at 1712.
(11) Id. at 1712-13.
(12) Id. at 1713.
(16) Justices Stevens, Souter, Ginsburg, and Breyer joined Chief Justice Roberts's opinion.
(17) Flowers, 126 S. Ct. at 1713.
(18) Id. at 1713-14 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)) (internal quotation marks omitted).
(19) Id. at 1715 (quoting Mullane, 339 U.S. at 315) (internal quotation mark omitted).
(20) Id. at 1716.
(21) In Robinson v. Hanrahan, 409 U.S. 38 (1972), the Court held that notice of forfeiture proceedings sent to a home address was inadequate when the State knew the owner was in prison. Id. at 40.
(22) In Covey v. Town of Somers, 351 U.S. 141 (1956), the Court held that notice of foreclosure by mailing, posting, and publication was inadequate when town authorities knew the property owner "to be an incompetent who [was] without the protection of a guardian." Id. at 144, 146-47.
(23) Flowers, 126 S. Ct. at 1716.
(26) Id. at 1717.
(27) Id. The Court then responded to three arguments the Commissioner presented for why the State should not have been required to pursue reasonable follow-up measures in Jones's case. First, the Court made clear that although notice was reasonably calculated to reach Jones because the Commissioner sent it to an address that Jones had a legal obligation to keep updated, it was not reasonable for the Commissioner to take no further action when notice was promptly returned as "unclaimed." Second, the Court maintained that "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." Third, the Court argued that although a property owner should act diligently to ensure that the occupant of his property would notify him if he were in danger of losing the property, an occupant "is not charged with acting as the owner's agent in all respects" and does not have an obligation "to follow up with certified mail of unknown content addressed to the owner." Id. at 1717-18.
(28) Id. at 1719.
(32) Id. at 1720 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950)) (internal quotation mark omitted).
(33) Justices Scalia and Kennedy joined Justice Thomas's dissent.
(34) Flowers, 126 S. Ct. at 1727 (Thomas, J., dissenting).
(35) Id. at 1722.
(36) Id. at 1723.
(37) Id. at 1724.
(39) See Robinson v. Hanrahan, 409 U.S. 38 (1972) (prisoners); Covey v. Town of Somers, 351 U.S. 141 (1956) (incompetents).
(40) Flowers, 126 S. Ct. at 1725 (Thomas, J., dissenting).
(41) 534 U.S. 161 (2002).
(42) Id. at 169-70.
(43) Flowers, 126 S. Ct. at 1724 (Thomas, J., dissenting).
(44) Id. at 1725.
(45) Commentators have long criticized the lack of principled content in the Court's procedural due process analysis. See, e.g., Richard B. Saphire, Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection, 127 U. PA. L. REV. 111, 113 (1978) ("[T]he Supreme Court, in deciding when constitutional protections apply in non-criminal, adjudicative contexts, has generally failed to specify and articulate the values which underlie due process. Moreover, in those cases in which the Court has attempted to define due process values, it has generally done so in an ambiguous and unsatisfactory fashion.").
(46) Flowers, 126 S. Ct. at 1714 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)); id. at 1722 (Thomas, J., dissenting) (quoting the same text).
(47) Id. at 1717 (majority opinion); see id. at 1723 (Thomas, J., dissenting) ("[W]hether a method of notice is reasonably calculated to notify the interested party is determined ex ante ....").
(48) See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (stating that due process requires a balancing of "the private interest that will be affected," the "risk of an erroneous deprivation of such interest," and "the probable value, if any, of additional or substitute procedural safeguards" against the "Government's interest"); see also Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2646 (2004) (plurality opinion) (highlighting the balancing needed to resolve "the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right"); Zinermon v. Burch, 494 U.S. 113, 127 (1990) (explaining that due process "is a flexible concept that varies with the particular situation" and that it requires the Court to "weigh several factors"); United States v. Salerno, 481 U.S. 739, 748 (1987) (holding, in the preventive detention context, that "the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest"). In addition to the Court's procedural due process cases, decisions delimiting substantive due process rights have incorporated balancing. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850 (1992) (stating that due process "has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society" (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting))); Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 279 (1990) (explaining, in the context of an alleged right to refuse life-sustaining treatment, that whether a person's "constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests" (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)) (internal quotation mark omitted)).
(49) See Greene v. Lindsey, 456 U.S. 444, 454 (1982) ("[T]he reasonableness of the notice provided must be tested with reference to the existence of 'feasible and customary' alternatives and supplements to the form of notice chosen."); Mullane, 339 U.S. at 315 ("The reasonableness ... of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." (internal citations omitted)).
(50) 424 U.S. 319 (1976).
(51) 534 U.S. 161, 167 (2002) (citing Mathews, 424 U.S. 319). The Court went on to write:
Although we have ... invoked Mathews to evaluate due process claims in other contexts, we have never viewed Mathews as announcing an all-embracing test for deciding due process claims. Since Mullane was decided, we have regularly turned to it when confronted with questions regarding the adequacy of the method used to give notice.
Id. at 167-68 (internal citation omitted); see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 802 (1983) (O'Connor, J., dissenting) ("Without knowing what state and individual interests will be at stake in future cases, the Court espouses a general principle ostensibly applicable whenever any legally protected property interest may be adversely affected.").
(52) The one previous case in which the Court explicitly engaged in balancing was Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 489-90 (1988). Nonetheless, some cases have hinted at an underlying balancing of interests. See Mennonite, 462 U.S. at 798 ("To begin with, a mortgagee possesses a substantial property interest that is significantly affected by a tax sale."); Walker v. City of Hutchinson, 352 U.S. 112, 115 (1956) ("We [in Mullane] called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions."). It may be that the Court has shied away from explicit balancing in the notice context because most cases, with the exception of Mullane (common trust fund) and Tulsa Professional Collection Services (hospital expenses), have involved traditional property interests, namely real estate. As one scholar has incisively observed:
The rise of balancing here is closely linked with the recognition of new forms of property protected by the due process clause. The importance of "entitlements" such as welfare benefits ... seemed to demand procedural protections against their deprivation, but the ever-increasing size of the welfare state made imposition of procedures a costly enterprise. Balancing provided a flexible strategy that took account of both interests.
T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 965-66 (1987).
(53) See Flowers, 126 S. Ct. at 1715.
(54) Id. at 1716.
(55) A counterargument is that the Mullane test has a balancing component built into its original design. See Mullane, 339 U.S. at 314 ("Against this interest of the State we must balance the individual interest sought to be protected by the Fourteenth Amendment."). But if this is the only point at which the Court has balanced the relevant interests, constitutional notice hinges on an exceptionally crude scheme that does not take into account such seemingly elementary considerations as the magnitude of the property interest at stake or the unique difficulties for the sender associated with giving notice in a certain situation. This would be an extreme doctrinal outlier in the Court's due process jurisprudence. See cases cited supra note 48.
Another counterargument would attack the balancing formula itself. Admittedly, it poses enormous administrability problems related to incommensurability and imprecision. See, e.g., Edward L. Rubin, Due Process and the Administrative State, 72 CAL. L. REV. 1044, 1138 (1984) ("This reliance on 'weight,' which is a useful approach for dealing with bananas, leaves something to be desired where factors such as those in Mathews are concerned."). But the point of this Comment is not to defend interest balancing against a more finely grained constitutional doctrine of specific rules. It is only to show that explicit interest balancing is preferable to interest balancing hidden by a test that is doing no doctrinal work. And for those in favor of more specific rules, interest balancing is at least a way to prevent arguments about due process from devolving into nebulous "fairness" inquiries. See Gary Lawson, Katherine Ferguson & Guillermo A. Montero, "Oh Lord, Please Don't Let Me Be Misunderstood!": Rediscovering the Mathews v. Eldridge and Penn Central Frameworks, 81 NOTRE DAME L. REV. 1, 5 (2005) ("There is no algorithm for determining fairness in [the due process] context.... The most that one can do is to channel the fairness inquiry in a fashion that lends itself to the stylized arguments of an adversarial legal culture.... A properly constructed framework--whether consisting of two factors, three factors, or more--can in principle serve that modest but significant function even if it is useless as a tool for making or predicting ultimate decisions.").
(56) Professor Daryl Levinson makes a related point in Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000). He criticizes damage remedies for constitutional torts because "we cannot assume that government will behave like a private, profit-maximizing firm." Id. at 356. On the contrary, "[g]overnment does not behave like a wealth-maximizer, and therefore does not attach any intrinsic disutility to financial outflows--just as it attaches no intrinsic utility to financial inflows. Rather, government internalizes only political incentives." Id. at 357. This Comment argues, in a similar vein, that what is "reasonable" for a private citizen--when the inquiry relates at least in some loose sense to a balancing of costs and benefits--might be very different from what is "reasonable" for a government entity.
(57) This problem of defining the relevant constitutional object recurs cross-doctrinally. The most frequently discussed example is in fundamental rights jurisprudence. Justices Brennan and Scalia famously argued over the degree of specificity at which a proposed right ought to be defined. In defending his choice--"the most specific level"--Justice Scalia wrote:
The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference--or at least to announce ... some other criterion for selecting among the innumerable relevant traditions that could be consulted--is well enough exemplified by the fact that in the present case Justice Brennan's opinion and Justice O'Connor's opinion, which disapproves this footnote, both appeal to tradition, but on the basis of the tradition they select reach opposite results.
Michael H. v. Gerald D., 491 U.S. 110, 128 n.6 (1989) (opinion of Scalia, J.) (citation omitted). Similarly, in Flowers, without a criterion for selecting the relevant procedure, the ex ante principle was able to dictate opposite results.
(58) See Flowers, 126 S. Ct. at 1723-24 (Thomas, J., dissenting).
(59) See id. at 1717, 1720 (majority opinion).
(60) See Frank S. Alexander, Tax Liens, Tax Sales, and Due Process, 75 IND. L.J. 747, 805 (2000) (noting that the "elusive nature" of the Mullane test "poses significant barriers to predictability, certainty, and stability in the tax foreclosure process," and advocating a more comprehensive approach than interest balancing). The case for determinate legal rules is strongest for issues that go not to the substance of a legal dispute, but rather to the structure and procedures of the legal process. Even in the area of constitutional procedural protections, the concern for ex ante clarity arguably outweighs the benefits of ex post equitable discretion in most contexts.
(61) See Flowers, 126 S. Ct. at 1721.
(62) See id. at 1720.
(63) See Dusenbery v. United States, 534 U.S. 161, 172-73 (2002); Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490 (1988); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799, 800 (1983); Greene v. Lindsey, 456 U.S. 444, 455 (1982); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 319 (1950).
(64) Tulsa Prof'l Collection Servs., 485 U.S. at 490.
(65) Flowers, 126 S. Ct. at 1726 (Thomas, J., dissenting).
(66) However, the majority predicted that States would be reluctant to abandon the use of certified mail because it "provides the State with documentation of personal delivery and protection against false claims that notice was never received." Id. at 1720 (majority opinion).
(67) Id. at 1715; see id. at 1715 n.2.
(68) See ALASKA STAT. [section] 29.45.330 (2004) (regular mail); ARIZ. REV. STAT. ANN. [section] 42-18108 (2006) (regular mail); ARK. CODE ANN. [section] 26-37-301 (Supp. 2005) (certified mail plus actual notice by personal service of process if no proof that notice sent by mail was received by property owner); COLO. REV. STAT. [section] 39-11-101 (Supp. 2005) (regular mail); HAW. REV. STAT. ANN. [section] 246-56 (LexisNexis 2003) (registered mail plus posting on the property); IOWA CODE [section] 446.2 (2003) (regular mail); KAN. STAT. ANN. [section] 79-2801 (Supp. 2005) (personal service or regular mail); KY. REV. STAT. ANN. [section] 134.440 (West 2005) (regular mail); LA. REV. STAT. ANN. [section] 47:2183 (Supp. 2006) (certified mail plus personal service if notice sent by mail is returned unclaimed); MASS. GEN. LAWS ch. 60, [section] 53 (2004) (personal service or leaving notice at property owner's dwelling house); MONT. CODE ANN. [section] 15-18-212 (2005) (notice to current occupant of property); N.J. STAT. ANN. [section] 54:5-27 (West 2002) (regular mail); 2006 N.Y. Sess. Laws 415 (McKinney) (amending N.Y. REAL PROP. TAX LAW [section] 1125 (McKinney 2000)) (certified mail and regular first-class mail plus an attempt to obtain an alternative mailing address and posting on the property if certified mail and first-class mail are returned by postal service); OR. REV. STAT. [section] 312.125 (2005) (certified mail and regular first-class mail); 72 PA. STAT. ANN. [section] 5860.602 (West 1990) (certified mail plus first-class mail if notice sent by certified mail is returned unclaimed); S.C. CODE ANN. [section] 12-51-40 (Supp. 2005) (certified mail plus posting on the property if notice sent by mail is returned unclaimed); TENN. CODE ANN. [section] 67-5-2502 (2003) (personal service if possible; otherwise, leaving notice at property owner's dwelling house); VA. CODE ANN. [section] 58.1-3965 (2004) (notice to property address); WASH. REV. CODE [section] 84.64.050 (2004) (certified mail plus regular first-class mail if notice sent by certified mail is returned unclaimed). Idaho's statute may or may not be in compliance with Flowers, depending on how it is applied. IDAHO CODE ANN. [section] 63-1005 (2000) (certified mail plus publication if the notice by certified mail is "returned undelivered after attempting to locate and serve the record owner").
(69) The Chief Justice's break with the conservatives was noticed in the blogosphere, as well as in more traditional media outlets. See, e.g., Hadley Arkes, Playing Well with Others?, NATIONAL REVIEW ONLINE, May 18, 2006, http://article.nationalreview.com/?q=NmUyMGQ0MDJlMWM 3YjdkNDYzZmRkNjZkMTYzMWRlNjE; Ashlea Ebeling, Justice Roberts Slams State's Property Seizure, FORBES.COM, Apr. 27, 2006, http://www.forbes.com/businessinthebeltway/2006/04/ 27/supreme-court-property-foreclosure-cz_ae_0427scotus.html; Posting of D. Benjamin Barros to PropertyProf Blog, http://lawprofessors.typepad.com/property/2006/04/jones_v_flowers.html (Apr. 26, 2006).
(70) See, e.g., Tennessee v. Lane, 124 S. Ct. 1978, 2009 (2004) (Scalia, J., dissenting) ("As a general matter we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government.").
(71) See, e.g., Kelo v. City of New London, 125 S. Ct. 2655, 2671 (2005) (O'Connor, J., dissenting) (joined by Rehnquist, C.J., and Scalia and Thomas, JJ.).…