Greene v. Lindsey

• Court: United States Supreme Court
• Citation: 102 S.Ct. 1874,456 U.S. 444,72 L.Ed.2d 249
• Docket Number: No. 81-341,81-341
• Parties: Joseph GREENE, et al., Appellants v. Linnie LINDSEY, et al
• Decision Date: 17 May 1982

456 U.S. 444 102 S.Ct. 1874 72 L.Ed.2d 249 Joseph GREENE, et al., Appellants

v.

Linnie LINDSEY, et al.

No. 81-341. Argued Feb. 23, 1982. Decided May 17, 1982. Syllabus

A Kentucky statute permits service of process in forcible entry or detainer actions to be made by posting a summons "in a conspicuous place on the premises," if the defendant or a member of the defendant's family over 16 years of age cannot be found on the premises. Service of process under this statute was made on appellee tenants in a public housing project by posting a summons on the door of each of their apartments. Appellees claim that they never saw the summonses and did not know of the eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them and their opportunity for appeal had lapsed. They then filed a class action in Federal District Court against appellant public officials, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 and alleging that the notice procedures employed violated the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment for appellants, holding that such notice procedures did not deny due process. The Court of Appeals reversed.

Held : In failing to afford appellees adequate notice of the proceedings against them before issuing final orders of eviction, the State deprived them of property without due process of law required by the Fourteenth Amendment. Pp. 449-456.

(a) "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865. Pp. 1877-1878.

(b) In light of the fact that appellees were deprived of a significant interest in property and, indeed, of the right to continued residence in their homes, it does not suffice to recite that because the action was in rem, it was only necessary to serve notice "upon the thing itself." The sufficiency of the notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. Pp. 450-451.

(c) Notices posted on the doors of tenants' apartments were "not infrequently" removed before they could be seen by the tenants. What-

Page 445

ever the efficacy of posting notice on a door of a person's home in many cases, it is clear that, in the circumstances of this case, merely posting notice on the apartment door did not satisfy minimum standards of due process. Pp. 453-454.

(d) Neither the statute nor the practice of process servers provides for even a second attempt at personal service. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be constitutionally adequate. P. 454.

(e) Notice by mail in the circumstances of this case would go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense. Pp. 455-456.

649 F.2d 425, 6 cir., affirmed.

William L. Hoge, III, Louisville, Ky., for appellants.

Robert Frederick Smith, Barry L. Master, Lousiville, Ky., for appellees.

Justice BRENNAN delivered the opinion of the Court.

A Kentucky statute provides that in forcible entry or detainer actions, service of process may be made under certain circumstances by posting a summons on the door of a tenant's apartment. The question presented is whether this statute, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment.

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I

Appellees Linnie Lindsey, Barbara Hodgens, and Pamela Ray are tenants in a Louisville, Ky., housing project. Appellants are the Sheriff of Jefferson County, Ky., and certain unnamed Deputy Sheriffs charged with responsibility for serving process in forcible entry and detainer actions. In 1975, the Housing Authority of Louisville initiated detainer actions against each of appellees, seeking repossession of their apartments. Service of process was made pursuant to Ky.Rev.Stat. § 454.030 (1975), which states:

"If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court."

In each instance, notice took the form of posting a copy of the writ of forcible entry and detainer on the door of the tenant's apartment.¹ Appellees claim never to have seen these posted summonses; they state that they did not learn of the

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eviction proceedings until they were served with writs of possession, executed after default judgments had been entered against them, and after their opportunity for appeal had lapsed.

Thus without recourse in the state courts, appellees filed this suit as a class action in the United States District Court for the Western District of Kentucky, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. They claimed that the notice procedure employed as a predicate to these eviction proceedings did not satisfy the minimum standards of constitutionally adequate notice described in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and that the Commonwealth of Kentucky had thus failed to afford them the due process of law guaranteed by the Fourteenth Amendment. Named as defendants were the Housing Authority of Louisville, several public officials charged with responsibility over particular Louisville public housing projects, Joseph Greene, the Jefferson County Sheriff, and certain known and unknown Deputy Sheriffs.

On cross-motions for summary judgment, the District Court granted judgment for appellants. In an unreported opinion, the court noted that some 70 years earlier, in Weber v. Grand Lodge of Kentucky, F. & A. M., 169 F. 522 (1909), the Court of Appeals for the Sixth Circuit had held that constructive notice by posting on the door of a building, pursuant to the predecessor statute to § 454.030, provided an adequate constitutional basis upon which to commence an eviction action, on the ground that it was reasonable for the State to presume that a notice posted on the door of the building in dispute would give the tenant actual notice in time to contest the action. Although the District Court recognized that "conditions have changed since the decision in Weber . . . and . . . that there is undisputed testimony in this case that notices posted on the apartment doors of tenants are often removed by other tenants," App. 41-42, the court nevertheless concluded that the procedures employed did not deny due

Page 448

process in light of the fact "that posting only comes into play after the officer directed to serve notice cannot find the defendant on the premises," id., at 42.

The Court of Appeals for the Sixth Circuit reversed the grant of summary judgment in favor of appellants and remanded the case for further proceedings. 649 F.2d 425 (1981). Acknowledging that its decision in Weber directed a contrary result, the Court of Appeals examined the doctrinal basis of that decision, and concluded that it rested in part on distinctions between actions in rem and actions in personam that had been drawn in cases such as Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 32 L.Ed. 1045 (1889); Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed. 918 (1890); Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461 (1907); and Longyear v. Toolan, 209 U.S. 414, 28 S.Ct. 506, 52 L.Ed. 859 (1908), and that had been substantially undercut by intervening decisions of this Court. In overruling Weber, the Court of Appeals cited International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), as cases calling for a more realistic appraisal of the adequacy of process provided by the State. Turning to the circumstances of this case and the procedures contemplated by § 454.030, the Court of Appeals noted that while there may have been "a time when posting provided a surer means of giving notice than did mailing, [t]hat time has passed. The uncontradicted testimony by process servers themselves that posted summonses are not infrequently removed by persons other than those served constitutes effective confirmation of the conclusion that notice by posting 'is not reasonably calculated to reach those who could easily be informed by other means at hand,' " 649 F.2d, at 428, quoting Mullane, supra, at 319, 70 S.Ct., at 659.² The court held, therefore, that the notice provided

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pursuant to § 454.030 was constitutionally deficient. We noted probable jurisdiction, 454 U.S. 938, 102 S.Ct. 473, 70 L.Ed.2d 246 (1981), and now affirm.

II A.

"The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). And the "right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest," Mullane, supra, at 314, 70 S.Ct.,...