Opinion of the Justices to the House of Representatives

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 563 N.E.2d 203,408 Mass. 1215
• Parties: OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.
• Decision Date: 29 November 1990

Page 203

563 N.E.2d 203

408 Mass. 1215

OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

Supreme Judicial Court of Massachusetts.

Nov. 29, 1990.

On November 29, 1990, the Justices submitted the following answers to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the House of Representatives on August 29, 1990, and transmitted to us on August 30, 1990. The order recites that there is now pending before the General Court a bill (House No. 6120) entitled "An Act further regulating tax titles in the town of Nantucket."

The proposed legislation (presented to the Legislature pursuant to a home rule petition) provides as follows:

"SECTION 1. Whenever the town of Nantucket has conveyed or sold any land or holds a tax title pursuant to chapter sixty of the General Laws by any instrument in writing conveying or taking or purporting to convey or to take such land, and said instrument is duly recorded in the registry of deeds for the district wherein such land is situated and a period of forty years elapses after the instrument is accepted for record, and the notice or procedure for taking and sale or conveyance under said chapter or the instrument or record thereof because of defect, irregularity, or omission, fails to comply in any respect with any requirement of law relating thereto, including a failure by the town to foreclose the right of redemption, the instrument or record thereof shall, notwithstanding such defects, irregularities or omissions be effective for all purposes and shall operate to foreclose all rights or [sic ] redemption to the same extent as though such notice or procedure or the instrument or record thereof had originally not been subject to any such defects, irregularities, or omissions, unless an instrument of redemption has been recorded prior to the effective date of this act.

"SECTION 2. The provisions of this act shall only apply to instruments recorded prior to July first, nineteen hundred and forty-eight, and shall have no effect on any legal proceeding commenced prior to the effective date of this Act in the courts of this Commonwealth in which a party has appeared asserting a cause of action claiming the right to redeem.

"SECTION 3. This act shall take effect one year after the date of its enactment."

The order transmitted to us asserts that grave doubt exists as to the constitutionality of the bill if enacted into law and propounds the following questions:

"Question 1. Does the provision in said bill regarding foreclosing all rights of redemption regardless of a failure to comply with notice and the procedures for taking and sale or conveyance, including a failure by the town to foreclose the right of redemption violate due process under Article X of Part the First of the Constitution of the Commonwealth?

"Question 2. Does the provision in said bill regarding foreclosing all rights of redemption regardless of a failure to comply with notice and the procedures for taking and sale or conveyance, including a failure by the town to foreclose the right of redemption violate due process under the Fourteenth Amendment to the Constitution of the United States?

"Question 3. Would said bill which forecloses only rights of redemption of land in the town of Nantucket deny to those persons whose rights are foreclosed equality of rights under Article I of Part the First of the Constitution of the Commonwealth?

"Question 4. Would said bill which forecloses only rights of redemption of land in the town of Nantucket deny to those persons whose rights are foreclosed equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States?"

1. Due process considerations. Question 1 involves due process under art. 10 of the Massachusetts Declaration of Rights, and question 2 involves due process under the Fourteenth Amendment to the United States Constitution. Because "[t]he protection afforded property interests by both provisions is subject to the same analysis," School Comm. of Hatfield v. Board of Educ., 372 Mass. 513, 515 n. 2, 363 N.E.2d 237 (1977), we shall make no specific distinctions for the purposes of our opinion, see Pinnick v. Cleary, 360 Mass. 1, 13-14 n. 8, 271 N.E.2d 592 (1971), and shall address questions 1 and 2 in a single discussion of due process. See Nantucket Conservation Found., Inc. v. Russell Management, Inc., 380 Mass. 212, 215, 402 N.E.2d 501 (1980).

The bill provides in pertinent part, only as to instruments recorded prior to July 1, 1948, that, "[where] the town of Nantucket has conveyed or sold any land or holds a tax title ... and such instrument is duly recorded ... and the notice and procedure for taking and sale or conveyance under said ... instrument ... because of defect, irregularity, or omission, fails to comply ... with any requirement of law relating thereto ... the instrument ... shall, notwithstanding such defects, irregularities or omissions be effective for all purposes and shall operate to foreclose all rights ... unless an instrument of redemption has been recorded prior to the effective date of this act.... This act shall take effect one year after the date of its enactment." ¹ Through these provisions the bill on its face purports to terminate certain property interests without specific notice to the holders of those interests. Therefore, a question exists whether the bill on its face violates due process requirements.

"Mullane v. Central Hanover Bank & Trust Co. [339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ], established that state action affecting property must generally be accompanied by notification of that action: '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.' " Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478, 484, 108 S.Ct. 1340, 1344, 99 L.Ed.2d 565 (1988). We have no doubt that the proposed bill does refer to a substantial property interest--the right to redeem real property. Less clear, however, is whether passage of the bill would trigger the attachment of any due process rights in the first instance with or without regard to the presence of State action.

"The due process standards of Mullane apply to an 'adjudication' that is 'to be accorded finality.' The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property. It has long been established that 'laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,' Grayned v. City of Rockford, 408 U.S. 104, 108 [92 S.Ct. 2294, 2298, 33 L.Ed.2d 222] [1972], but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights." (Footnote omitted.) Texaco, Inc. v. Short, 454 U.S. 516, 535-536, 102 S.Ct. 781, 795-796, 70 L.Ed.2d 738 (1982). Thus, "if the [challenged] governmental conduct [is] legislative, the property owner has no procedural due process rights. 'When the legislature passes a law which affects a general class of persons, those persons have all received procedural due process--the legislative process. The challenges to such laws must be based on their substantive compatibility with constitutional guarantees.' The large number of people affected by the legislative process ensures that the legislature will act reasonably." (Citation omitted.) County Line Joint Venture v. Grand Prairie, 839 F.2d 1142, 1144 (5th Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 223, 102 L.Ed.2d 214 (1988). See Tulsa Professional Collection Serv. v. Pope, supra 485 U.S at 485-486, 108 S.Ct. at 1345-1346 ("Nor is the State's involvement in the mere running of a general statute of limitations generally sufficient to implicate due process").

In the Texaco case, the United States Supreme Court applied these principles in analyzing a due process challenge to a statute similar in some respects to the proposed bill. There, owners of severed mineral interests challenged the application of a State lapse statute that automatically extinguished any mineral interest that had not been used for a period of twenty years. The statute did not provide for notice to the owner of the mineral interest prior to the lapse. The mineral-interest owners claimed a denial of procedural due process on the basis that the State failed to notify them of the requirement of the new law. The Court rejected the argument. The Court stated that "[i]t is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property." Texaco v. Short, supra 454 U.S. at 532, 102 S.Ct. at 793. The Court noted further that the statute stated a general rule of law, self-executing in nature, that governed the abandonment of property. Id. at 535, 102 S.Ct. at 795. The Court concluded that such a statute did not trigger constitutional notice requirements because those requirements pertained to judicial adjudications of property that were to be accorded finality. Id. The Court also stated that "a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply." Id. at 532, 102 S.Ct. at 793. A two-year grace period that allowed an owner to protect an interest foreclosed any argument that the owner did not have a reasonable opportunity to...