New Second Circuit Decision Protects Homeowners

by Brian Wolfman

The Second Circuit today issued a major decision regarding the rights of homeowners whose homes are seized by local authorities for failure to pay taxes without giving the homeowners constitutionally adequate notice.

InLussenhop v. Clinton County, the Second Circuit did two important things. First, the court held that the Tax Injunction Act, 28 U.S.C. 1341, does not bar a plaintiff from challenging in federal court notice procedures employed by state and local governments prior to seizing tax delinquent property. Second, in remanding the three cases before it to the district court, the court indicated that it would vigorously protect the notice rights established in Jones v. Flowers, 126 S. Ct. 1708 (2005). Jones held that when the government knows that its initial notice that it plans to seize a home has not reached the homeowner, due process requires the government to take reasonable additional steps to notify the owner prior to the taking. As the first major post-Jones ruling, the Lussenhop decision is definitely worth a read.

[Disclosures: Michael Kirkpatrick and Deepak Gupta of my office, Public Citizen Litigation Group, filed an amicus brief in Lussenhop. The Litigation Group also represented the homeowner in Jones v. Flowers.]