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Greene v. Lindsey
456 U.S. 444 (1982)
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.
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. Appellees claim never to have seen these posted summonses; they state that they did not learn of the 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." 1
Thus without recourse in the state courts, appellees filed this suit as a class action in the
(^1) Posting" refers to the practice of placing the writ on the property by use of a thumbtack, adhesive tape, or
other means. Appellants describe the usual method of effecting service pursuant to ' 454.030 in the following terms: "The officer of the court who is charged with serving notice in a forcible entry and detainer action, usually a Jefferson County Deputy Sheriff, takes the following steps in notifying a tenant. First, the officer goes to the apartment in an effort to effectuate personal in-hand service. Second, if the named tenant is absent or will not appear at the door, personal in-hand service is made on any member of the tenant's family over sixteen years of age. Finally, if no one answers the door, a copy of the notice is posted on the premises, usually the door."
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 (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," the court nevertheless concluded that the procedures employed did not deny due 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."
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 (1878), 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 (1945), Mullane, supra, and Shaffer v. Heitner, 433 U.S. 186 (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, [that] 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
unusual in such proceedings, and that in the case before us the landlord claimed only a right to recover possession.
As in Mullane, we decline to resolve the constitutional question based upon the determination whether the particular action is more properly characterized as one in rem or in personam. 339 U.S., at 312. See Shaffer v. Heitner, supra, at 206. That is not to say that the nature of the action has no bearing on a constitutional assessment of the reasonableness of the procedures employed. The character of the action reflects the extent to which the court purports to extend its power, and thus may roughly describe the scope of potential adverse consequences to the person claiming a right to more effective notice. But "'[a]ll proceedings, like all rights, are really against persons.'" In this case, appellees have been deprived of a significant interest in property: indeed, of the right to continued residence in their homes. In light of this deprivation, it will not suffice to recite that because the action is in rem, it is only necessary to serve notice "upon the thing itself." The sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests. In arriving at the constitutional assessment, we look to the realities of the case before us: In determining the constitutionality of a procedure established by the State to provide notice in a particular class of cases, "its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925).
It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention. See Mullane, supra, at 316. The frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests.
The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be
served personally is actually apprised of proceedings against him.
But whatever the efficacy of posting in many cases, it is clear that, in the circumstances of this case, merely posting notice on an apartment door does not satisfy minimum standards of due process. In a significant number of instances, reliance on posting pursuant to the provisions of § 454.030 results in a failure to provide actual notice to the tenant concerned. Indeed, appellees claim to have suffered precisely such a failure of actual notice. As the process servers were well aware, notices posted on apartment doors in the area where these tenants lived were "not infrequently" removed by children or
other tenants before they could have their intended effect. 3 Under these conditions, notice by posting on the apartment door cannot be considered a "reliable means of acquainting interested parties of the fact that their rights are before the courts." Mullane, 339 U.S., at 315.
Of course, the 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. Ibid. In this connection, we reject appellants' characterization of the procedure contemplated by § 454.030 as one in which "'posting' is used as a method of service only as a last resort." To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a "good percentage" of cases, posting follows forthwith. Neither the statute, nor
(^3) The depositions before the District Court included the following statements by the process servers:
"The children -- we had problems with children. They would take [the writs] off. "They never took them off when we were present, but we, you know, assume -- the Housing Authority told us that they would take them off, so we always put them up high." "Q. Did you ever see kids pulling them off? "A. Yes. "Q. You did? "A. Uh-huh. "Q. Did you see many? "A. No, not too many. I did see it in one place over there. "Q. Where was that? "A. Village West. "Q. How many times did you see that happen? "A. Well, probably a couple of times." "Q.... Were you aware of there being any problem with children ripping the Writs off? "A. Oh, we had plenty of trouble. "Q. You had trouble? "A. With kids, yeah. Yeah. "Q. Did you ever see kids ripping them off? "A. Yeah. I have seen them take them off of the door and I would go back and tell them to put it back. They don't know. They didn't know. They just --
.... "Q. Were there any particular places where you saw kids ripping them off the doors? "A. Well most of that was in Village West."
Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court's result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.
At a minimum, the Fourteenth Amendment requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The question before the Court is whether the notice provided by Kentucky's statute meets this standard. In answering that question, the first "circumstances" to be considered are the nature and purpose of the action for which notice is required.
Kentucky's forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky. Rev. Stat. '' 383.200, 383.210 (1972). As this Court has recognized, such circumstances call for special procedures:
"There are unique factual and legal characteristics of the landlord-tenant relationship that justify special statutory treatment inapplicable to other litigants. The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property." Lindsey v. Normet, 405 U.S. 56, 72- (1972).
The means chosen for making service of process, therefore, must be prompt and certain, for otherwise the principal purpose of a forcible entry and detainer action could be thwarted before the judicial proceedings even began.
The Kentucky statute meets this need. It directs the process server to attempt personal service on the tenant at his residence. Ky. Rev. Stat. § 454.030 (1975). If the process server cannot find the tenant on the premises, the statute directs the server to explain and leave a copy of the notice with a family member over the age of 16. Ibid. If both of these attempts fail, Kentucky authorizes the server, as a last resort, to post a copy of the
notice in a conspicuous place on the premises. Ibid.
As the Court recognizes, notice procedures like Kentucky's, though "less rigorous" than mandatory personal service, nonetheless "have enjoyed substantial acceptance throughout our legal history." The weight of historical precedent is reinforced by the collective wisdom of the legislatures of the at least 11 States authorizing notice in summary eviction proceedings solely by posting or by leaving the notice at the tenant's residence. The Court itself acknowledges that "posting notice on the door of a person's home would, in many or perhaps most instances, constitute... a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him."
The Court nonetheless rejects these established procedures as unconstitutional, though it does not cite a single case, other than the decision below, supporting its position that notice by posting is constitutionally inadequate in summary eviction proceedings. Instead, the Court relies solely on the deposition testimony of a few Kentucky process servers.
The testimony is hardly compelling. For example, one process server, Mr. S. Carter Bacon, reported having seen children in the Village West housing development pull down posted writs "probably a couple of times." The Court neglects to mention, however, that another process server, Mr. Gilbert Brutscher, cast doubt on Mr. Bacon's testimony by stating:
"I had been warned beforehand that, by Mr. Bacon, Carter Bacon, that he suspected -- he wasn't certain, but he suspected that on some occasions the Writs had been torn off the doors by kids. This is what he told me. Whether that is true or not, I don't know. And I don't think that he observed that, and the six months I was working at it there was no occasion where I saw anyone tear the Writs off of the door."
The Court also neglects to mention that another process server testified that in order to avoid problems with children, the process servers "always put [the writs] up high. So we never had any problems with that." Corroborating this testimony, moreover, is the testimony of yet another process server, who asserted: "we always try to put the paper up above where, a, say a small child can't reach it." This server, asked whether he had "had complaints about small children ripping them off," answered that he had never had a complaint and had never seen a child try to rip a notice off.
Plainly, such conflicting testimony falls well short of what this Court should require before rushing to scrap Kentucky's considered legislative judgment that, as a last resort, posted notice is an appropriate form of service of process for forcible entry and detainer actions.
The Court, however, holds that notice via the mails is so far superior to posted notice that
Jason DeParle, "Slamming the Door"
New York Times Magazine, 52, 55-56 (October 20, 1996)
Though Charlotte is booming, so is its housing crisis. The [Crisis Assistance] ministry got 1,000 more requests for help last year than it did the year before; despite the city's overall prosperity, those seeking help reported incomes that were 4 percent lower and shelter costs that were 7 percent higher. Two years ago, the average person walking through the ministry's doors paid $417 for rent and utilities out of a monthly income of $622, a shelter burden of 67 percent. By last year, the average was $448 out of $596 -- an astonishing 75 percent There are 160,000 households in Charlotte, and about 20 percent meet the Federal definition of "very low income"; that is, they live on less than half the area's median income, or less than $21,000 a year. The city plan notes that these households "cannot afford adequate housing" and that they "often must make hard choices on whether to spend their limited income on shelter, food or heat." About 10 percent -- 16, households -- live on less than $12,000 a year. About their prospects, the city is even more pessimistic. Without rental assistance, the plan says, they "are likely to be living in highly unstable situations, or doubled up with other families, behind on their rent and prone to eviction." Oddly enough, Charlotte's housing problems represent progress of a sort. More accurately, they represent the price of progress -- progress in this case being the eradication of the seriously substandard housing that was prevalent in the United States a generation ago. Mary Patton grew up in a house in the Carolina countryside with no running water and a wood stove for heat. It was brutish but cheap: the rent was just $4 a month. Even Charlotte was awash in shotgun shanties at the time. Now, for the most part, the outhouses, tin roofs and slumlords are gone; they've been replaced by housing inspectors, due process -- and rents that are out of reach. Perhaps no one in Charlotte knows more about the trade-offs than Ted Fillette, a Legal Services lawyer who pushed for much of the change. He arrived in Charlotte 23 years ago, fresh from a legal clinic in Boston, then the hotbed of the tenants' rights movement. Charlotte, he says, "was literally like a third world country -- tenants were like serfs." The city had an entire submarket of caveat emptor homes: take 'em as you find 'em structures with weekly rents and no heat. Tenants could be evicted on two days' notice if they dared to call a housing inspector. "I just decided this would be my focus," he says. "Tenants had to have some rights." Now they do: rights to repairs; rights against evictions without a court order; rights to trial by judge and jury, rather than landlord-friendly magistrates. What they don't have is money to pay for the improved housing stock. Fillette himself is ambivalent about the trade-off. "Were people better off when they were cold and paying $150 for their own place?" he asks. "Or are they better off with heat and plumbing, but living doubled up or paying every last cent for rent? I don't know."
Questions on Greene v. Lindsey
Who were the parties to this litigation?
How many courts were involved in this litigation?
Was there a trial?
How did each court rule? How did their reasoning differ? What authorities (statutes, cases, constitutional provisions) did they rely upon? How persuasive were their arguments?
Did the Supreme Court reach the right decision? Why? Be prepared to argue that the decision was correct even if you think it was incorrect, and vice versa.
What is the rule of law ("the holding") established by this case? Try to state it in a single sentence. For example, one might say that the holding in Brown v. Board of Education is “Racial segregation in public schools violates the Equal Protection Clause of the 14th^ Amendment.”
If a court were to consider the constitutionality of a new method of service of process (for example, service by email), what factors should the court consider?
Do you think tenants (including those not parties to Greene v. Lindsey ) generally benefited from this decision? How might the decision help them? How might it hurt them?
Suppose you rent a posh apartment in Beverly Hills. The building has a doorman, 24- hour security, and other amenities. The landlord wants to evict you and attempts to notify you by posting the summons on the door to your apartment. You don't see the summons, and the landlord evicts you. You bring suit in federal court arguing that service of process was unconstitutional. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which are more persuasive?
Suppose you park your car in unapproved spot on the USC campus. A USC Transportation Services employee tacks a notice on your car stating that you must move it within 24 hours or it will be towed. You don't see the notice in time, and USC tows your car. You file suit in federal court arguing that USC violated your Due Process rights. Are you likely to win? Be sure to think of arguments both for why you might win and for why you might lose. Which is more persuasive?
