MATHIAS, J.
Here, pursuant to the versions of the tax sale statutes in effect at the time, the Auditor sent notice to “Saw Creek” via certified mail at the old Dandy Trail address in Indianapolis instead of the Brownsburg address. And when those letters were returned as unclaimed, the Auditor published notice in a newspaper. Under the existing precedent prior to 2006, it would appear that the Auditor here did all that was required. . . . .
B. Jones v. Flowers
In 2006, the United States Supreme Court issued its opinion in Jones v. Flowers, holding that when the government attempts to notify a property owner of a pending tax sale via certified mail, and the certified mail is subsequently returned as unclaimed, the government “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.” 547 U.S. 220, 225 (2006). [Footnote omitted.] The Court reaffirmed that actual notice is not required—only notice that is “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.” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). In this regard, the Court held that simply publishing notice was insufficient. Id. at 237 (“notice by publication is adequate only where ‘it is not reasonably possible or practicable to give more adequate warning.’”).
Although the Court recognized that it was not its responsibility to prescribe the form of service that the government should adopt, it did conclude that there were several “additional reasonable steps” the State of Arkansas could have taken in the case. Id. at 234. Among these steps was the simple act of resending the notice. Id. at 230 (“[W]hen a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so.”). And the State could even send the notice via regular mail, so that a signature was not required. Id. at 234. In fact, the Court noted that “the use of certified mail might make actual notice less likely in some cases [because] the [certified] letter cannot be left like regular mail to be examined at the end of the day, and it can only be retrieved from the post office for a specified period of time.” Id. at 235.
Another reasonable step that could have been taken by the State, directed at the possibility that Jones had moved as well as that he had simply not retrieved the certified letter, “would have been to post notice on the front door, or to address otherwise undeliverable mail to ‘occupant.’” Id. at 235. “Occupants who might disregard a certified mail slip not addressed to them are less likely to ignore posted notice, and a letter addressed to them (even as ‘occupant’) might be opened and read.” Id. The Court noted that “[p]osting notice on real property is ‘a singularly effective way of ensuring that a person . . . is actually apprised of proceedings against him.’” Id. at 236 (quoting Greene v. Lindsey, 456 U.S. 444, 452-53 (1982)).
The Court was not wholly sympathetic to Jones, however, and rejected his argument that the Commissioner should have searched for his new address in a phone book or other government records such as income tax rolls because the unclaimed certified letter did not necessarily mean that Jones no longer lived at the home but merely informed the government that no one appeared to sign for the mail. The Court noted:
Jones should have been more diligent with respect to his property, no question. People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.
Id. at 234 (citations omitted). Ultimately, the Court reversed the grant of summary judgment and remanded for further proceedings.
C. Indiana’s Response
In 2007, our General Assembly amended the pre-tax sale notice statute, in obvious response to the Supreme Court’s holding in Jones. As amended, the statute now requires that a duplicate copy of the pre-sale notice be sent by first class mail if the initial attempt at notice by certified mail is returned and not signed:
In addition [to notice being sent via certified mail], the county auditor shall mail a duplicate notice to the owner of record, as described in subdivisions (1) and (2), by first class mail to the owners from whom the certified mail return receipt was not signed and returned. Additionally, the county auditor may determine that mailing a first class notice to or serving a notice on the property is a reasonable step to notify the owner, if the address of the owner is not the same address as the physical location of the property. If both notices are returned due to incorrect or insufficient addresses, the county auditor shall research the county auditor records to determine a more complete or accurate address. If a more complete or accurate address is found, the county auditor shall resend the notices to the address that is found in accordance with this section.
Ind. Code § 6-1-1.24-4 (2007). Thus, the General Assembly has codified the Jones requirement that notice be resent via first class mail if the notice sent via certified mail is returned as unclaimed, and made posting notice an optional, but not required, additional step. [Footnote omitted.]
D. The Present Case
The trial court here concluded that the Auditor had not taken additional reasonable steps to notify Sawmill Creek after the letters sent by certified mail were returned as unclaimed. Under the holding in Jones, we must agree. [Footnote omitted.] Here, the Auditor was aware that the owner of the Lot had not received any of the three required notices, all of which were sent via certified mail and all of which were returned as unclaimed. Under these circumstances, Jones required the Auditor to take additional steps to attempt to provide notice to the property owner before selling his property, if it was practicable to do so. 547 U.S. at 225.
First and foremost among these steps would have been to resend the notice via first class mail. See id. at 234. The Auditor does not explain why this simple step would have not been practicable under the circumstances. To be sure, first class mail sent to the old Dandy Trail address in Indianapolis would not, in all likelihood, have reached Sawmill Creek because that address was apparently an empty hangar. But the Auditor was not aware of this at the time the notice letters sent via certified mail were returned as unclaimed. All that was known at the time was that the owner of the Lot had not received the mailed notices.
Moreover, even if it is unlikely that first class mail sent to the old address would have reached Sawmill Creek, the failure of notice in a specific case does not establish the inadequacy of the attempted notice. Jones, 547 U.S. at 231. “The constitutionality of a particular procedure for notice is assessed ex ante rather than post hoc.” Id. Thus, the question is not what would have been the best way to ensure that Sawmill Creek did, in fact, receive notice. The question is instead what additional reasonable steps the Auditor could have taken that were reasonably calculated under the circumstances to apprise interested parties of the pendency of the action after the initial attempts at notice were returned as unclaimed. See id. at 225.
While the trial court and the parties seem to have focused their argument on the issue of whether the Auditor should have posted notice on the Lot, we need not consider other, possible, alternative measures the Auditor could taken beyond resending the notice by first class mail. Under Jones, we simply cannot agree with the Auditor and McCord that resending notice by first class mail was not required here. The Auditor’s attempts to notify were therefore constitutionally inadequate.
We recognize that this entire controversy could have been avoided had Simpson shown even a modicum of responsibility himself. He could have made certain that the Lot was deeded to Sawmill Creek instead of “Saw Creek.” Had he properly ensured that his current address for the taxation of the Lot was on file with the Auditor, and if he had simply noticed that he had not been paying the taxes due on the Lot, all of the current controversy could have been avoided. The Court in Jones considered similar arguments by the Commissioner but still concluded that the Commissioner was required to do more than publish notice when notice by certified mail had been returned as unclaimed.
BAKER, C.J., and NAJAM, J., concur.