WASHINGTON, April 26 — "An elementary and fundamental requirement of due process," the Supreme Court ruled many years ago, is that the government must provide "notice" and an opportunity to be heard before it seizes property.
On Wednesday, the court added teeth to that requirement, ruling that Arkansas violated a homeowner's right to due process when it sold his house for nonpayment of taxes after sending him two certified letters that came back "unclaimed."
Writing for a 5-to-3 majority, Chief Justice John G. Roberts Jr. said that "it is not too much to insist that the state do a bit more" before using its "extraordinary power" to take and sell a person's house.
The Constitution does not require "actual notice" like personally handing the letter to the homeowner, the chief justice observed. But he said that once the state became aware, as in this case, that an effort at notice had failed, it 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."
Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy dissented, the latter two signing a dissenting opinion by Justice Thomas. The state did all that was constitutionally required, Justice Thomas said, adding that it was the homeowner's responsibility to make sure that the authorities knew how to contact him. The court was imposing a "burdensome" and "impractical" requirement on the government, he said.
After a separation from his wife, the homeowner, Gary K. Jones, had moved out, continuing to pay the mortgage while his wife remained in the house. The mortgage company paid the property taxes. But once Mr. Jones paid off the mortgage, the taxes went unpaid.
Justice Samuel A. Alito Jr. did not vote in the case, which was argued shortly before he joined the court in January. The decision, Jones v. Flowers, No. 04-1477, overturned a ruling by the Supreme Court of Arkansas.
For anyone watching the emergence of the Roberts court, the case provided intriguing tea leaves. It was the chief justice's fourth majority opinion, and the first to provoke any dissenting votes. That the dissenters included the court's two best-known conservatives was interesting, of course.
Equally intriguing was the choice by Justice Kennedy, seen by many as the justice most likely to assume the central position on the court previously held by Justice Sandra Day O'Connor, to join Justices Thomas and Scalia in an almost paradigmatic case pitting an individual against the state.
While this was hardly the most high-profile case on the court's docket, no case that requires the justices to express their views on the meaning of constitutional due process is insignificant.
Further, the federal government raised the stakes by entering the case to argue that the notice Arkansas provided to Mr. Jones was adequate. Given that many federal agencies have authority to seize property, "the United States has a substantial interest in the question presented," the solicitor general's office told the court in a 29-page brief.
The most recent Supreme Court case to touch on a related issue was in 2002, when the court ruled, 5 to 4, that the Federal Bureau of Investigation had satisfied due process by mailing a notice to a prisoner that his property was about to be forfeited. The bureau was unaware at the time that the prisoner had not received its letter.
William H. Rehnquist, then the chief justice, wrote the majority opinion in that case, Dusenbery v. United States, joined by Justices Thomas, Scalia, Kennedy and O'Connor. The dissenters then, all of whom joined Chief Justice Roberts in the new case, were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
In his majority opinion, Chief Justice Roberts acknowledged the Dusenbery case but said the "new wrinkle" was that in the new case the government was aware by the time it seized the property that it had failed to notify the owner.
Offering an analogy, the chief justice said that if the Arkansas tax commissioner had "prepared a stack of letters to mail to delinquent taxpayers, handed them to a postman and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the commission's office to prepare a new stack of letters and send them again" rather than "simply shrug his shoulders as the letters disappeared and say 'I tried.' "
Among the additional "reasonable steps" the chief justice said the state might have taken was to send the notice by regular mail, so that a signature was not required, or to post a notice on the front door.
In a second decision on Wednesday, the court set a new rule for people seeking to bring a lawsuit that accuses government officials of fomenting a criminal prosecution as retaliation for criticizing a government agency.
By a vote of 5 to 2, the court held that such a "retaliatory prosecution" suit could proceed only if the plaintiff could demonstrate an absence of probable cause for the prosecution.
The decision overturned a ruling by the federal appeals court here, which had not imposed that requirement in permitting a lawsuit against five postal inspectors to proceed.
The plaintiff, William G. Moore Jr., had been engaged in a business dispute with the Postal Service. He contended in his suit that the postal inspectors had persuaded a federal prosecutor to bring criminal charges against him, charges that were dismissed after a federal district judge found a "complete lack of evidence."
Under the court's precedents, prosecutors themselves have absolute immunity for a decision to prosecute, meaning that such suits must be brought against the officials who influenced the prosecutor to bring the case.
In his majority opinion on Wednesday in Hartman v. Moore, No. 04-1495, Justice Souter said that showing an absence of probable cause was the most reliable way to make the necessary link "between the retaliatory animus of one person and the action of another."
Justices Ginsburg and Breyer dissented. Chief Justice Roberts, who was on the appeals court when the case was decided there, and Justice Alito, who was not on the Supreme Court when it was argued in January, did not vote.