Appendix — Rosengarten v. United States, 151 Ct. Cl. 706 (1960) (No. 07-56)

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Appendix A

Supreme Court of Illinois

In re APPLICATION OF THE COUNTY COLLECTOR for

Judgment and Sale Against Lands and Lots Returned

Delinquent for Nonpayment of General Taxes and/or Special

Assessments for the Years 1991 and Prior Years (Apex Tax

Investments, Inc., ef al, Appellees, v. Mary Lowe, Deceased,

by Patrick T. Murphy, Cook County Public Guardian and

Supervised Administrator of the Estate of Mary Lowe,

Appellant).

No. 97165.

April 19, 2007.

Chief Justice THOMAS delivered the judgment of the

court, with opinion:

Justice KILBRIDE dissented, with opinion.

OPINION

This cause is before us on remand from the United States

Supreme Court for further consideration in light of Jones v.

Flowers, 547 U.S. __, 164 L. Ed. 2d 415, 126 S. Ct. 1708

(2006). We have allowed additional briefing and oral

argument addressing the Supreme Court’s decision in Jones.

We also have permitted the Mental Health Association in

Illinois and the Mental Health Project of the University of

Chicago Law School’s Edwin F. Mandel Legal Aid Clinic to

file a brief amici curiae on behalf of the Cook County public

guardian, as supervised administrator for the estate of Mary

Lowe. In addition, we have permitted the Illinois Tax

Purchasers Association to file a brief amicus curiae on behalt

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of Apex Tax Investments, Inc., and its subsequent transferee

and claimed beneficial interest holder, John Herndon.

The facts in this case are set forth in the original opinion

of this court (Jn re Application of the County Collector, 217

[I]. 2d 1 (2005)). We repeat those facts in some detail in this

opinion, as those facts are relevant to our reconsideration in

light of Jones.

BACKGROUND

In 1977, Mary Lowe purchased a single-family home

located at 13250 South Riverdale in Chicago. In 1993, Lowe

quitclaimed the property to herself and William Austin.

Austin died in 1994. Property taxes were paid on the home

until 1992, when $110.65 in assessed taxes for the 1991

property tax year went unpaid.

Once property taxes become delinquent, the Property Tax

Code (the Code) (35 ILCS 200/1-1 et seg. (West 1994))

provides that the county collector may file an application in

the circuit court for judgment and order of sale of the

delinquent property. The Code directs that the county

collector shall publish notice of its intent to file an

application for judgment. 35 [LCS 200/21-110 (West 1994).

The notice must be published in a newspaper in the township

where the property is located at least 10 days before the

application is filed. 35 ILCS 200/21-115 (West 1994). In

addition, the county collector shall send a notice of the

application for judgment and sale, by certified or registered

mail, to the person in whose name the taxes were last

assessed at least 15 days before the date of the application for

judgment and sale of the delinquent property. 35 ILCS

200/21-135 (West 1994). The county collector must present

proof of the mailing to the court along with the application

for judgment. 35 ILCS 200/21-135 (West 1994). The

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property owner can pay the delinquent taxes and costs any

time prior to the sale. 35 ILCS 200/21-165 (West 1994). If

judgment is entered against the property, the county collector

shall offer the property for sale pursuant to the judgment. 35

ILCS 200/21-190 (West 1994),

Following a tax sale, the Code provides that, in order to

seek a tax deed, the tax purchaser must deliver a notice to the

county clerk to be given to the party in whose name the taxes

were last assessed. 35 ILCS 200/22-5 (West 1994). This

notice must be delivered to the county clerk within five

months after the tax sale, and the county clerk must mail the

notice, within 10 days of receipt, by registered or certified

mail. 35 ILCS 200/22-5 (West 1994). This section 22-5

“Take Notice” advises a party that his property has been sold

for delinquent taxes, that redemption can be made until a

specified date, and that a petition for tax deed will be filed by

the tax purchaser if redemption is not made. 35 ILCS 200/22-

5 (West 1994).

The Code provides for a second “Take Notice” to be sent

to the owners, occupants and parties interested in the

delinquent property not less than three months or more than

five months prior to the expiration of the period of

redemption. 35 ILCS 200/22-10 (West 1994). This section

22-10 take notice must give notice of the sale and the date of

expiration of the period of redemption. 35 ILCS 200/22-10

(West 1994). The section 22-10 take notice must be served:

personally by the sheriff; by registered or certified mail,

return receipt requested; and by three publications in a

newspaper. 35 ILCS 200/22-15, 22-20, 22-25 (West 1994).

Also “within 5 months but not less than 3 months prior to

the expiration of the redemption penod,” the tax purchaser

may file a petition in the circuit court seeking an order

directing the county clerk to issue a tax deed to the property.

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See 35 ILCS 200/22-30 (West 1994). In order to receive an

order issuing a tax deed, the redemption period must expire

without any redemption taking place, and the tax purchaser

must prove to the circuit court that it has strictly complied

with the statutory notice provisions set forth in sections 22-

10 through 22-25 of the Code (35 ILCS 200/22-10 through

22-25 (West 1994)). 35 ILCS 200/22-30 (West 1994).

In this case, the circuit court granted the collector’s

application for judgment and sale. The county collector

offered Lowe’s home for sale and, on March 3, 1993, Apex

Tax Investments, Inc. (Apex), purchased the home at the

annual Cook County tax sale for $347.61, the amount of the

1991 tax delinquency and fees. Apex did not receive title to

the property at that time, but instead received a “certificate of

purchase.” See 35 ILCS 200/21-250 (West 1994). The

certificate of purchase did not affect Lowe’s legal or

equitable title to the property. In addition, Lowe had the right

to redeem the property, upon payment of the tax arrearage

and costs, until the redemption period expired. See 35 ILCS

200/21-345 through 21-355 (West 1994).

On October 5, 1995, Apex filed a petition in the circuit

court of Cook County for a tax deed to the property. Apex’s

tax petition stated that the redemption period expired by

extension on February 21, 1996. Because no redemption

occurred by February 21, 1996, Apex’s petition proceeded to

an ex parte hearing on March 18, 1996.

At the March 18, 1996, hearing, Apex’s attorney testified

concerning Apex’s compliance with the statutory notice

provisions of sections 22-10 through 22-25 of the Code.

Apex conducted a tract search and learned that the property

at issue was owned by Mary Lowe and William Austin.

Apex conveyed this information to the Cook County sheriff

and the clerk of the circuit court of Cook County. Pursuant

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to section 22-15 of the Code (35 ILCS 200/22-15 (West

1994)), the Cook County sheriff attempted to personally

serve Lowe, Austin and “occupant” with the section 22-10

“take notice” on October 26, 1995. The Cook County sheriff

filed the returns of service for the section 22-10 take notices

with the clerk of the circuit court on November 9, 1995. On

each return of service, the deputy sheriff wrote “House

vacant per neighbors.” In addition, the deputy sheriff wrote

the word “MOVED” on the preprinted form to indicate the

reason why notice was not served.

Because the Cook County sheriff could not effect

personal service on Austin, Lowe or “occupant,” the sheriff

also sent section 22-10 take notices to Austin, Lowe and

“occupant” at the property’s address by certified mail, return

receipt requested. The three certified mail notices were

returned to the sheriff undelivered, and were filed with the

clerk of the circuit court.

The envelopes for the three certified mail notices were

admitted into evidence at the hearing on Apex’s petition for a

tax deed. All three envelopes were postmarked November 8,

1995, and were stamped “return to sender.” On the envelope

addressed to Austin, the word “deceased” was handwritten in

penci! on the left side of the cnvclope. The cnvclopes

addressed to Lowe and “occupant” contained stamps

indicating that attempts were made to deliver the notices on

November 16, December 11, and December 18, 1995. In

addition, the two envelopes addressed to Lowe and

“occupant” contained a_ handwritten notation written

vertically on the left side of the envelope which read, “Person

is Hospitalized.” Under that notation, the number “2719”

and the letters “JHT” were handwritten. The handwritten

notations on the envelopes have a line drawn through them

and are obscured in part by the circuit court clerk’s filing

stamp and the post office’s “return to sender” stamps. The

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sheriff filed the returned certified mail notice for Austin with

the court on November 22, 1995, and filed the returned

certified mail notices for Lowe and “occupant” with the court

on January 2, 1996.

Pursuant to statute, the clerk of the circuit court of Cook

County also sent section 22-10 take notices by certified mail

to Lowe, Austin and “occupant.” These notices were returned

undelivered. The three certified mail envelopes were

postmarked November 8, 1995, and were stamped “return to

sender.” The three envelopes contained notations indicating

that attempts were made to deliver the notices on November

9, November 15, and November 24, 1995. Apex also

provided publication notice to Lowe and Austin by

publishing notice in the Chicago Daily Law Bulletin on

October 11, October 12, and October 13, 1995.

At the hearing on Apex’s petition for tax deed, Apex’s

attorney testified that, in attempting to ascertain the

whereabouts of Lowe and Austin, the Cook County sheriff

personally served a section 22-10 take notice on the law firm

that prepared the 1993 quitclaim deed on behalf of Lowe.

The clerk of the circuit court also sent notice to the law firm

by certified mail on November 8, 1995. Moreover, the First

National Bank of Chicago, in its capacity as a mortgagee of

the property, was personally served with a section 22-10 take

notice on October 24, 1995. Likewise, the clerk of the circuit

court sent notice by certified mail to the bank on November

8, 1995.

Apex’s agent, Fred Berke, testified at the hearing that he

had visited the property and inspected it on behalf of Apex

sometime between October 21 and December 21, 1995.

When Berke arrived at the home, he knocked on the door and

looked into the living room window. Berke did not see any

furniture inside the home. In addition, Berke spoke to a next-

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door neighbor who told Berke that the owner of the property

was the “Lowes,” but that no one was living there currently.

Berke testified that the home appeared to be uninhabited.

Apex’s attorney also testified that Apex checked city and

suburban phone directories and voter registration records, but

was unable to develop any address for William Austin or

Mary Lowe other than the subject property address. Apex’s

attorney stated that all regular efforts to locate Lowe and

Austin had proven fruitless.

At the close of the hearing on Apex’s petition for tax

deed, the circuit court found that no redemption had been

made, that Apex had complied with the notice provisions of

the property Tax Code, and that Apex had exercised “due

diligence” in attempting to locate Lowe and Austin.

Consequently, on May 20, 1996, the circuit court directed the

county clerk to issue Apex a tax deed to the property. The tax

deed was issued on May 20, 1996.

Subsequently, on December 6, 1996, Apex entered into

an installment contract to sell the property to third-party John

Herndon for $ 10,000. Herndon testified via deposition that

the property was in substantial disrepair when he purchased

it. describing the home as an abandoned building. Herndon

invested more than $20,000 in material and labor in

renovating the property, completing the renovations by early

1998.

On September 5, 1997, two of Mary Lowe’s sons, Bruce

and Mario Lowe, filed a pro se petition for “Restoration of

Property Ownership” in the circuit court of Cook County,

stating that Mary Lowe had been in and out of various mental

facilities for the past 30 years and that Lowe had been

hospitalized in a mental-health facility from August 26, 1995,

to December 17, 1996. The petition stated that Mary Lowe

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had been released to Bruce Lowe’s custody and that Mary

currently resided with Bruce in California. The pro se

petition alleged that personal service on an incompetent

person violates that person’s right to due process. The

petition therefore asked that the court reinstate Mary’s full

rights of ownership in the subject property.

Based upon the allegation that Mary Lowe was mentally

disabled, the circuit court on November 1997 appointed the

Cook County public guardian to represent her.’ The public

guardian then filed a petition, and later an amended petition,

pursudnt to section 2-1401 of the Code of Civil Procedure

(735 ILCS 512—1401 (West 1994)) and section 22-45 of the

Code (35 ILCS 200122-45 (West 1994)), seeking to have the

tax deed that was issued to Apex set aside. The public

guardian alleged the Mary Lowe suffered from schizophrenia

and had been hospitalized at the Tinley Park Mental Health

Center at the time the section 22-10 notices were sent to the

property in November 1995. The public guardian also noted

that two of the notices mailed by the Cook County sheriff

were returned with the notation “Person is hospitalized 2719

JHT” written on the envelopes. The public guardian alleged

that the notations were written by mail carner Jewel

Hightower. The number 2719 was Hightower’s postal route

numbers and the letters “JHT” were Hightower’s initials. The

public guardian contended that Apex failed to make diligent

inguiry concerning the whereabouts of Mary Lowe because

Apex never attempted to contact Hightower or the post

office.

' Mary Lowe died on November 15, 1998. The probate division of the

circuit court of Cook County entered an order appointing the public

guardian as administrator to collect for the estate of Lowe, and the public

guardian, as administrator to the estate of Mary Lowe, was substituted as

the proper party to prosecute the amended petition to set aside the tax

deed

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An evidentiary hearing on the public guardian’s amended

petition to set aside the tax deed was held on February 20,

2002. The circuit court allowed Herndon to participate at the

hearing because he had purchased the subject property. Dr.

Bernard Rubin testified at the hearing that he had reviewed

Lowe’s mental-health records and concluded that Lowe had

suffered from disorganized, chronic schizophrenic disorder.

Rubin said that from January 1995 until October 1996, Lowe

suffered from a mental illness, was generally incompetent,

and would not have been able to understand or respond to

legal documents served upon her between January 1995 and

October 1996.

Hightower also testified at the evidentiary hearing that

she was a mail carrier for the United States Postal Service

and that the property at issue was on her route. She wrote

“Person is Hospitalized” on the certified letters sent by the

sheriff to Lowe and occupant. Hightower also wrote her

postal route number, “2719,” and her initials, “JHT,” on the

envelopes. At the time she made the notations on the

envelopes, Hightower knew that Lowe was in Tinley Park

Mental Health Center, but postal regulations did not allow

her to note anything more specific than the fact that an

addressee was hospitalized. Hightower testified that anyone

wanting further information concerning Lowe's whereabouts

could have come to the post office and filled out the proper

forms, although Hightower did not further explain what

forms would authorize disclosure that a person was

hospitalized in a mental-health facility.

On Apnil 9, 2002, the circuit court denied the public

guardian's amended petition to set aside the tax deed. The

appellate court affirmed. No. 1-02-1101 (2003) (unpublished

order under Supreme Court Rule 23). This court granted the

public guardian's petition for leave to appeal and affirmed

the circuit and appellate courts.

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In affirming, this court noted that relief from an order

issuing a tax deed could be had under section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994)),

but that the grounds for relief were limited as set forth in

section 22-45 of the Code (35 ILCS 200/22-45 (West 1994)).

In re Application of the County Collector, 217 Ul. 2d at 25-

26. These grounds are limited to: (1) proof that the taxes

were paid prior to the sale; (2) proof that the property was

exempt from taxation; (3) proof by clear and convincing

evidence that the tax deed was procured by fraud or

deception; or (4) proof by a person or party holding a

recorded ownership or other interest in the property that he

was not named as a party in the section 22-20 publication

notice and that the tax purchaser did not make a diligent

inquiry and effort to serve that person or party with the

notices required pursuant to sections 22-10 through 22-30. 35

ILCS 200/22-15 (West 1994).

The public guardian argued that the tax deed issued to

Apex should be set aside because there was clear and

convincing evidence that Apex had procured the tax deed by

fraud or deception. /n re Application of the County Collector,

217 Ill. 2d at 26. The public guardian claimed that Apex’s

representation that it had been unable to ascertain Lowe's

whereabouts despite having conducted a diligent search

constituted fraud or deception in light of “*Apex’s willful

ignorance with respect to the notations [from Hightower] on

the undelivered envelopes.’ /n re Application of the County

Collector, 217 Ill. 2d at 23.

This court rejected the public guardian’s argument,

noting that in the context of tax deed proceedings, fraud ts

defined as a wrongful intent or an act calculated to deceive.

In re Application of the County Collector, 217 Il. 2d at 23.

This court held that the record in the case did not show fraud.

Specifically, this court found that:

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“The envelopes with Jewel Hightower’s notations on

them were returned by the post office to their sender, the

Cook County sheriff. The sheriff submitted the envelopes

to the clerk of the circuit court, who then placed the

envelopes in the court file, which, by statute, the clerk is

required to maintain in tax deed cases. [Citation.] There

was nothing unusual or unexpected about the fact that the

envelopes were returned, undelivered. Both an agent

from Apex and a deputy sheriff from the Cook County

sheriff's office had visited the property, found it vacant,

and had been told by neighbors that the occupants of the

home had moved. Further, the notations on the envelopes

addressed to Mary Lowe and ‘occupant,’’though legible,

cannot reasonably be called prominent. The notations

have a line drawn through them and they are partially

obscured by the circuit court clerk’s filing stamps and the

post office’s ‘returned to sender’ stamps. More important,

there is no evidence that Apex attempted to conceal the

notations or alter the envelopes in any way. ***

On this record, the most that can be said with respect

to Apex’s actions is that Apex simply failed to discover

the notations on the envelopes. However, as this court has

frequently noted, the failure to uncover a particular fact

during the search for a delinquent taxpayer does not, by

itself, establish fraud.” Jn re Application of the County

Collector, 217 Ill. 2d at 23-24.

This court also rejected the public guardian’s claim that

the tax deed should be set aside because Lowe had been

denied her due process right to adequate notice prior to the

deprivation of her property. This court concluded that the

public guardian was attempting to relitigate the circuit court's

diligent-inquiry finding - a finding that could not be

challenged in a section 2-1401 petition except on the grounds

set forth in section 22-45 of the Code. Jn re Application of

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the County Collector, 217 Ill. 2d at 37-38. Because this court

had already concluded that fraud under section 22-45 had not

been proven, this court declined to further consider the public

guardian’s argument that Apex failed to conduct a diligent

inquiry to locate Lowe. /n re Application of the County

Collector, 217 Ill. 2d at 38.

Finally, this court reyected the public guardian’s argument

that the Code is unconstitutional as applied to all individuals

like Lowe, who are hospitalized with a disabling mental

illness during the section 22-10 notice period. Jn re

Application of the County Collector, 217 Ill. 2d at 38. We

held that the notice procedures set forth in sections 22-10

through 22-25 of the Code embodied all that could be done

under existing law to locate and identify a delinquent

taxpayer who is hospitalized for mental illness. Jn re

Application of the County Collector, 217 Ill. 2d at 41-42.

The United States Supreme Court subsequently granted

the public guardian’s petition for writ of certiorari, vacated

the judgment of this court, and remanded the cause for our

further consideration in light of Jones v. Flowers, 547 U.S.

__, 164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). Estate of

Lowe v. Apex Tax Investments, Inc., 547 U.S. , 164 L. Ed

2d 811, 126S. Ct. 2287 (2006).

ANALYSIS

We begin our analysis on reconsideration with a review

of the Jones decision. At issue in Jones was whether the

government must take additional reasonable steps to provide

notice before taking an owner’s property when the notice of

tax sale that was mailed to the owner is returned undelivered.

Jones, 547 U.S. at . 164 L. Ed. 2d at 425, 126 S. Ct. at

1713.

13a

In that case, Gary Jones purchased a home on Bryan

Street in Little Rock, Arkansas, in 1967 and lived in the

Bryan Street home with his wife until they separated in 1993.

Jones then moved into an apartment in Little Rock and his

wife remained in the Bryan Street home. Jones continued to

pay the mortgage on the Bryan Street home after he moved

out, and the mortgage company paid Jones’ property taxes.

After the mortgage was paid off in 1997, the property taxes

went unpaid and the property was certified as delinquent.

Jones, 547 U.S. at __, 164 L. Ed. 2d at 424, 126 S. Ct. at

1712.

In April 2000, the Commissioner of State Lands mailed a

certified letter to Jones at the Bryan Street home notifying

Jones of the tax delinquency and of his right to redeem the

property. The letter also stated that unless Jones redeemed

the property, the property would be subject to a public sale

two years later on April 17, 2002. The post office returned

the certified letter to the Commissioner marked “unclaimed”

because no one was home to sign for the letter and no one

retrieved the letter from the post office within the next 15

days. Jones, 547 U.S. at _, 164 L. Ed. 2d at 424, 126S. Ct.

at 1712.

Two years later, the Commissioner published a notice of

public sale in the newspaper. No bids were submitted, so the

State was permitted to negotiate a private sale of the

property. Thereafter, Linda Flowers submitted a purchase

offer. Accordingly, the Commissioner mailed another

certified letter to Jones at the Bryan Street address notifying

Jones that his house would be sold to Flowers if he did not

pay his taxes. This letter was returned to the Commissioner

marked “unclaimed.” Flowers then purchased the house and,

after the 30-day period for post sale redemption had passed,

Flowers had an unlawful detainer notice delivered to the

property. The unlawful-detainer notice was served on Jones’

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daughter. Jones’ daughter then told Jones about the tax sale.

Jones, 547 U.S. at __, 164 L. Ed. 2d at 424, 126 S. Ct. at

1712-13.

Jones filed suit in state court against the Commissioner

and Flowers alleging that the Commissioner’s failure to

provide notice of the tax sale and of Jones’ right to redeem

resulted in the taking of Jones’ property without due process.

The trial court granted summary judgment in favor of the

Commissioner and Flowers, finding that the state tax sale

statute that set forth the notice procedure complied with

constitutional due process requirements. The Arkansas

Supreme Court affirmed, finding that attempting to provide

notice by certified mail satisfied due process under the

circumstances. Jones, 547 U.S. at__, 164 L. Ed. 2d at 424-

25, 126 S. Ct. at 1713.

Before the Supreme Court, the Commissioner argued that

due process was satisfied once the state provided notice

reasonably calculated to apprise Jones of the impending tax

sale by mailing Jones a certified letter. Jones, 547 U.S. at

___, 164 L. Ed. 2d at 425, 126 S. Ct. at 1714. The Supreme

Court agreed that it had deemed notice constitutionally

sufficient if it was reasonably calculated to reach the

intended recipient when sent. Jones, 547 U.S. at _, 164 L.

Ed. 2d at 426, 126 S. Ct. at 1714. However, the Court stated

that it had never addressed whether due process required

further responsibility when the government becomes aware,

prior to the taking, that its attempt at notice failed. Jones, 547

U.S.at _,164L. Ed. 2d at 426, 126 S. Ct. at 1714.

The Court explained that it did not “think that a person

who actually desired to inform a real property owner of an

impending tax sale of a house he owns would do nothing

when a certified letter sent to the owner its returned

unclaimed.” Jones, 547 U.S. at, : 164 L. Ed. 2d at 427.

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126 S. Ct. at 1716. Consequently, the State of Arkansas’

decision to take no further action when the notice to Jones

was returned unclaimed was “not what someone ‘desirous of

actually informing’ Jones would do; such a person would

take further reasonable steps if any were available.” Jones,

547 U.S. at _, 164 L. Ed. 2d at 428, 126 S. Ct. at 1716.

The Court held that upon receiving the returned form

suggesting that Jones had not received notice that his

property was about to be sold, the “State should have taken

additional reasonable steps to notify Jones, if practicable to

do so.” Jones, 547 U.S. at __, 164 L. Ed. 2d at 430, 126 S.

Ct. at 1718.

The Court explained that there were several reasonable

steps the state could have taken when the certified letter to

Jones was returned unclaimed. For example, the state could

have resent the notice by regular mail so that a signature was

not required. Jones, 547 U.S. at ___, 164 L. Ed. 2d at 431,

126 S. Ct. at 1718-19. In addition, the state could have posted

notice on the front door of the house or could have addressed

the mail to “occupant,” Jones, 547 U.S. at __, 164 L. Ed. 2d

at 431, 126 S. Ct. at 1719. Further, the Court found that the

state’s attempt to follow up with Jones by publishing notice

in the newspaper was not constitutionally adequate under the

circumstances of the case because it was possible and

practicable to give Jones more adequate warming of the

impending tax sale. Jones, 547 U.S. at , 164 L. Ed. 2d at

433, 126 S. Ct. at 1720.

The Court rejected Jones’ claim, however, that the

Commissioner should have looked for his new address in the

Little Rock phonebook and other government records,

including income tax rolls. Jones, 547 U.S. at, 164 _L.

Ed. 2d at 431-32, 126 S. Ct. at 1719. The Court stated that an

“open-ended search for a new address - especially when the

State obligates the taxpayer to keep his address updated with

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the tax collector [citation] — imposes burdens on the State

significantly greater than the several relatively easy options

outlined above.” Jones, 547 U.S. at _, 164 L. Ed, 2d at

432, 126 S. Ct. at 1719.

The Court declined to prescribe the form of service that

the state should adopt, concluding that the state could

determine how to proceed in response to the Court’s

conclusion that notice was inadequate under the facts of this

particular case. Jones, 547 U.S. at __, 164 L. Ed. 2d at 433,

126 S. Ct. at 1721. Because notice in the case before it was

insufficient to satisfy due process, the Supreme Court

reversed the Arkansas state courts, holding that “when

mailed notice of a tax sale is returned unclaimed, the State

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.” Jones, 547 U.S. at __, 164 L. Ed. 2d

at 425, 1268S. Ct. at 1713.

In reconsidering this case in light of Jones, we first note

that this case is factually distinguishable from Jones. The

notice provided pursuant to the Illinois Property Tax Code is

far more comprehensive than the notice provided for in the

Arkansas statute at issue in Jones. The Arkansas statute

required the state to send only one notice, by certified mail,

to a property owner notifying him of the government’s intent

to sell his property for delinquent taxes. In contrast, the

Illinois statute provides that the county collector must

provide notice to a delinquent taxpayer by certified or

registered mail before obtaining a judgment order from the

circuit court authorizing the sale of the property. 35 ILCS

200/21-110, 21-115, 21-135 (West 1994). In addition, after

the court has ordered the sale of the property and the property

has been sold to a tax purchaser, the county clerk must notify

the delinquent taxpayer by certified or registered mail that

the property has been sold and that the taxpayer may redeem

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the property by paying the tax arrearage on or before a

specified date. 35 ILCS 200/22-5 (West 1994). Finally, a tax

purchaser seeking to obtain a tax deed also must send the

delinquent taxpayer notice of the sale and the expiration of

the redemption period.

Jones is further distinguishable because the issue in that

case concerned the notice a state must provide to a property

owner before taking his property. The Jones court

characterized the issue before it as “whether the Due Process

Clause requires the government to take additional reasonable

steps to notify a property owner when notice of a tax sale is

returned undelivered,” and held that “when mailed notice ofa

tax sale is returned unclaimed, the State 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.” (Emphases added.) Jones, 547 U.S.at __, 164 L. Ed. 2d

at 425, 126 S. Ct. at 1713. In holding that the state must take

additional reasonable steps to attempt to provide notice, the

Supreme Court stated that it did “not think that a person who

actually desired to inform a real property owner of an

impending tax sale of a house he owns would do nothing

when a certified letter sent to the owner is_ returned

unclaimed.” (Emphasis added.) Jones, 547 U.S. at __, - 164

L. Ed. 2d at 427, 126 S. Ct. at 1716.

In this case, in contrast, there is no issue concerning

notice of the tax sale. As we observed in our original opinion:

“In the case at bar, it is undisputed that Mary Lowe

was mentally incapacitated from January 1995 through

October 1996. However, the tax sale in this case, and the

time periods for the procedures noted above, occurred in

1993. The circuit court made no finding regarding the

competency, or incompetency, of Mary Lowe in 1993.

Moreover, while Dr. Rubin testified as to Lowe's

18a

incapacity in 1995 and 1996, he did not testify with

respect to her condition in 1993. Thus, it appears that,

prior to the deprivation of her property, and at a time

when there is no finding of record that she was

incompetent, Lowe was given notice of the application

for judgment and order of tax sale, had an opportunity to

object to the application for judgment, was given notice

that the tax sale had occurred, and was given notice that

she had the right to redeem her property,” (Emphasis

added.) /n re Application of the County Collector, 217 Il.

2d at 31.

Because there is no issue in this case concerning whether

Lowe was given notice of the tax sale, we find that the due

process concerns in Jones are not at issue in this case and,

therefore, that Jones does not require this court to reverse its

prior opinion.

The public guardian argues, however, that because the

lack of notice in this case concerns the hearing at which

Lowe actually lost the title to her home, Lowe was denied

due process even if she may have received some earlier

notice. The public guardian contends that the notice given to

Lowe in this case was deficient because Apex failed to

follow up on specific information that would have led to the

discovery of Lowe’s whereabouts and, even absent that

specific information, Apex failed to make a diligent inquiry

into finding Lowe.

The public guardian notes that in Jones, the certified mail

notices were returned marked “unclaimed.” In this case, not

only were the section 22-10 certified mail notices to Lowe

and “occupant” returned unclaimed, but the envelopes also

contained a notation from the letter carner that “Person 1s

Hospitalized” along with the letter carrier's initials and postal

route number. The public guardian argues that Jones directly

19a

addressed this type of situation and held that due process

requires a party to follow up on information provided in

response to its chosen method of service.

The public guardian maintains that Hightower’s notation

on the envelopes in this case put Apex on notice that Lowe

was not at the property where notice was sent, was not

receiving mail at that address, and was hospitalized. In

addition, the notation on the envelopes indicated that Apex

could follow up with Hightower to find out where Lowe was

hospitalized in order to provide Lowe with actual notice.

Further, had Apex followed up with Hightower, Apex would

have learned that Lowe was hospitalized in a state mental

institution and that she was incompetent. The public guardian

asserts that Apex had a constitutional duty under Jones to

inspect the returned envelopes and take reasonable steps in

response to any information that it discovered as a result.

Even if we were to accept the public guardian’s argument

that Jones applies in this case to the section 22-10 take

notice, we nonetheless find our prior opinion to be consistent

with Jones. The gravamen of the public guardian’s argument

is that, under Jones, Hightower’s notations on the envelopes

provided additional information to Apex that required Apex

to take additional reasonable steps in an attempt to provide

constitutionally sufficient notice to Lowe. We disagree.

As discussed, the Supreme Court in Jones observed that

the state did nothing for two years after its notice to Jones

was returned unclaimed. The Supreme Court held that the

state could have taken additional reasonable steps to notify

Jones that he was about to lose his property, such as

resending the notice by regular mail, posting notice on the

front door, or addressing the mail to “occupant.”

20a

In this case, Apex did take numerous additional steps to

notify Lowe that her property had been sold and that a

petition for tax deed had been filed. Apex conducted a tract

search of the property to determine the owner of the property.

The Cook County sheriff attempted to personally serve

Lowe, Austin and “occupant,” but determined that the home

was vacant. The Cook County sheriff also sent the section

22-10 take notice by certified mail addressed to Lowe, Austin

and “occupant.” The clerk of the circuit court likewise

attempted to serve Lowe, Austin and “occupant” with the

section 22-10 take notice by certified mail, return receipt

requested.

Apex also served the section 22-10 take notice on the law

film that prepared the quit claim deed in 1993, and on the

mortgagee of the property. Apex’s agent, Berke, visited the

property and spoke with a neighbor, who told Berke that the

“Lowes” owned the property, but no one currently lived

there. Moreover, Apex checked city and suburban phone

directories and voter registration records in order to find

another address for Lowe and Austin.

It is clear that the steps taken by Apex exceeded those

suggested by the Jones Court as reasonable. In fact, the Jones

Court stated that the state was not required to search for

Jones’ new address in the Little Rock phone book or in other

government records, explaining that “[a]n open-ended search

for a new address — especially when the State obligates the

taxpayer to keep his address updated with the tax collector

[citation] — imposes burdens on the State significantly greater

than the several relatively easy options outlined above.”

Jones, 547 U.S. at __, 164 L. Ed. 2d at 432, 126 S. Ct. at

1719.

In light of the foregoing, it is clear in this case that

Apex’s attempts at notice in this case were sufficient to

2la

satisfy due process under Jones. We are not convinced that,

under the circumstances of this case, Apex was required to

take additional steps in response to Hightower’s notations on

the certified mail envelopes. We cannot consider the

envelopes containing Hightower’s notations in isolation, but

instead must consider the envelopes in light of all the facts in

this case.

Prior to receiving the envelope with the notation that

“Person is Hospitalized,” the Cook County sheriff filed

returns of service indicating that the property was vacant and

that Lowe had moved. This information was confirmed by

Apex’s agent based upon his own observation and his

discussion with Lowe’s neighbor. Apex also knew that Lowe

had not responded to the county collector’s initial notice of

sale or the section 22-5 notice. Given the apparently accurate

information suggesting that Lowe had moved, which

conflicted with the notation that “Person is Hospitalized,” we

cannot say that Apex had a duty to further determine

whether, in fact, Lowe was hospitalized, where Lowe was

hospitalized, and why Lowe was hospitalized. We believe

that such an open-ended search would impose a significantly

greater burden than required under Jones.

Moreover, we are not as confident as the public guardian

that any further inquiry would have revealed that Lowe was

hospitalized at the Tinley Park Mental Health Center. As the

appellate court found:

“(T]he notation ‘person is hospitalized’ does not

necessarily mean the individual is hospitalized in a

mental health center. As the trial court indicated,

individuals are hospitalized for numerous reasons.

Hospitalization at a mental health center would not first

come to mind when learning that a ‘person is

22a :

hospitalized.’ No. 1-02-1101 (unpublished order under

Supreme Court Rule 23).

In addition, as noted in our prior opinion, section 3(a) of

the Mental Health and Developmental Disabilities

Confidentiality Act (740 ILCS 110/3(a) (West 2000)) does

not permit hospitals to disclose to tax purchasers the fact that

an individual is a recipient of mental health services. /n re

Application of the County Collector, 217 Ill. 2d at 41.

Likewise, Hightower did not explain what postal forms

would have authorized disclosure that Lowe was hospitalized

in the Tinley Park Mental Health Center.

Accordingly, we do not agree with the public guardian

that, had Apex followed up on Hightower’s notation, Apex

would have discovered where Lowe was hospitalized and

that Lowe was mentally incompetent. As the Supreme Court

recognized, “[w]hat steps are reasonable in response to new

information depends upon what the new information

reveals,” and if there are “no reasonable additional steps the

government could have taken upon return of the unclaimed

notice letter, it cannot be faulted for doing nothing.” Jones,

547 U.S.at __, 164 L. Ed. 2d at 430-31, 126 S. Ct at 1718.

The public guardian next argues that, even absent the

information provided by Hightower, Apex failed to undertake

an inquiry expected of one seeking to inform Lowe of the

proceedings against her. The public guardian asserts that

Apex’s agent, Berke, could have questioned Lowe’s neighbor

further concerning her whereabouts or could have questioned

other neighbors for information on Lowe. Berke also could

have posted information on the property. which likely would

have elicited further information.

Again, given the information available to Berke, we do

not agree that Jones would require Berke to conduct an open-

23a

ended search into Lowe’s whereabouts. The information

available to Berke was that the property was vacant and that

Lowe had moved. Further, Apex did check city and suburban

phone directories and voter registration records in order to

find another address for Lowe and Austin, but was unable to

find an address other than the subject property address.

Under the circumstances, we cannot say that Berke was

required to conduct further investigation or that Lowe was

constitutionally entitled to a more diligent inquiry.

Finally, we note that the public guardian argues that this

court erred in its prior opinion in rejecting the public

guardian’s challenge to the adequacy of Apex’s diligent

inquiry, without addressing the merits of that argument, on

the basis that a circuit court’s diligent inquiry finding cannot

be challenged in a section 2-1401 petition. The public

guardian contends that its challenge to the adequacy of

Apex’s diligent inquiry is authorized by section 22-45(4) of

the Code. The public guardian states that this court

apparently read section 22-45(4) as allowing relief only when

a party can show both that the tax purchaser failed to make a

diligent inquiry and that the tax purchaser failed to comply

with statutory publication requirements. The public guardian

argues that section 22-45(4) should be read disjunctively to

permit relief to a property owner who can show either a lack

of diligent inquiry or a lack of adequate notice by

publication.

We decline to address the public guardian’s argument

concerning section 22-45(4), as our reconsideration of this

case is limited to the Supreme Court’s decision in Jones.

Consequently, our reconsideration of Apex’s diligent inquiry

in attempting to serve Lowe is limited to whether Apex’s

notice to Lowe satisfied due process under Jones.

24a

After considering this case in light of the United States

Supreme Court’s decision in Jones, we find that this case

does not present facts establishing that Lowe was denied her

due process right under Jones to adequate notice prior to the

deprivation of her property. For that reason, we adhere to our

former disposition in this cause and affirm the judgment of

the appellate court.

Appellate court judgment affirmed.

Justices KARMEIER and BURKE took no part in the

consideration or decision of this case.

Justice KILBRIDE, dissenting:

I respectfully dissent from the majority opinion because |

disagree with its interpretation and application of the

Supreme Court’s opinion in Jones v. Flowers, 547 U.S. 220,

164 L. Ed. 2d 415, 126 S. Ct. 1708 (2006). Jones stands for

the proposition that a party with the duty to provide notice to

a property owner must “take additional reasonable steps to

attempt to provide notice” when “it is practicable to do so.”

Jones, 547 U.S. at __, 164 L. Ed. 2d at 425, 126 S. Ct. at

1713. In explaining the types of steps necessary to fulfill this

requirement, the Court reiterated the long-established

standard cited in Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).

Under that standard, to comport with due process, notice

‘“*must be such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it.”

(Emphasis added.) Jones, 547 U.S. at , 164 L. Ed. 2d at

427, 1268S. Ct. at 1715, quoting Mullane, 339 U.S. at 315, 94

L. Ed. at 874, 70 S. Ct. at 657. | do not believe that standard

was met in this case.

25a

As the majority correctly notes (slip op. at 13-14), the

facts in Jones differ from those in this appeal. Those

differences, however, only serve to underscore the need for

heightened due process protections for property owners like

Lowe, who face imminent danger of forfeiting all interest in

their homes without an opportunity to object. In Jones, the

Court addressed the sufficiency of Arkansas’ notice

requirements prior to a tax sale. Jones, 547 U.S. at__, 164

L. Ed. 2d at 425, 126 S. Ct. at 1713. Slip op. at 13-14. Here,

the issue involves this state’s section 22-10 notice

requirements after a tax sale has occurred but before the

owner is actually stripped of title to the property. Slip op. at

14. Without the section 22-10 notice, Lowe was at risk of

irretrievably losing a// interest in her home without being

given an opportunity to make a timely objection or redeem

the property.

Furthermore, the property owner in Jones was mentally

competent and simply neglected to ensure that the taxes on

the property were paid and that the mailing address in the tax

records was updated. Lowe, on the other hand. has a long

history of serious mental health problems and was

undeniably incompetent when the section 22-10 notices were

given. Moreover, her permanent mailing address in the tax

records was correct because she continued to reside al the

property except when she was hospitalized for mental-health

treatment.

Illinois’ section 22-10 “Take Notice” is designed to

inform the owner that property has already been sold at a tax

sale and that title will transfer to the tax purchaser if the

property is not redeemed by paying the back taxes before the

expiration of the redemption period. 35 ILCS 200/22-10

(West 1994). Thus, this notice provides the final opportunity

for the property owner to preserve any interest in the

property. Due to the magnitude and imminence of the risk of

26a

complete forfeiture, | believe that due process mandates even

more stringent notice requirements than those required before

the sale of the property. A heightened notice standard is

justified when the parties’ interests are balanced, with the

imminent, irreversible loss of title to a home or other

property carrying substantial weight. See Mullane, 339 U.S.

at 314, 94 L. Ed. at 873, 70 S. Ct. at 657 (explaining that the

specific test for the sufficiency of notice depends on the

balance between the interest of the individual being protected

by the due process clause and the state’s interest). See also

Jones, 547 U.S. at _, 164 L. Ed. 2d at 427, 126 S. Ct. at

1715 (quoting Mullane). Indeed, our legislature has deemed

it appropriate to enact more stringent statutory notice

requirements in the post sale context than in the presale

context. Compare 35 ILCS 200/21-110, 21-115, 21-135

(West 1994) with 35 ILCS 200/22-5, 22-10, 22-15, 22-20,

2-25 (West 1994).

There is, however, one significant factual similarity

between this case and Jones. In both instances, after it

became apparent that the property owner had not received the

statutory notice, the party obliged to provide notice “did —

nothing.” Jones, 547 U.S. at __, 164 L. Ed. 2d at 430, 126

S. Ct. at 1718. The Court in Jones concluded that due process

necessitated “additional reasonable steps to notify [the

property owner], if practicable to do so.” Jones, 547 U.S. at

, 164 L. Ed. 2d at 430, 126 S. Ct. at 1718.

More specifically, the Jones Court repeatedly noted the

principle that due process mandates notice ““such as one

desirous of actually informing the absentee might reasonably

adopt to accomplish it.’” (Emphasis added.) Jones, 547 U.S.

at, . _, 164L. Ed. 2d at 427, 428, 433, 435, 126S. Ct.

at 1715, 1716, 1721, 1722, quoting Mullane, 339 U.S. at 315,

94 L. Ed. at 874. 70 S. Ct. at 657. Here, it is difficult to

imagine that someone “desirous of actually informing” Lowe

27a

of the impending loss of her property would find it

unreasonable or “impracticable” to call the post office to

inquire about the letter carrier’s notation on the returned

certified mail envelope addressed to Lowe stating that she

was “hospitalized.” While this standard conflicts with the

inherently adverse interests of tax purchasers, who rationally

wish to obtain their tax deeds with the least possible effort

and expense, constitutional due process standards do not

exist for the benefit of the party intent on taking possession

of another’s property. See Mullane, 339 U.S. at 314, 94 L.

Ed. at 873, 70 S. Ct. at 657. See also Jones, 547 U.S. at _,

164 L. Ed 2d at 433-34, 126 S. Ct. at 1721 (noting that the

state has far less incentive to provide proper notice to

property owners before taking actions adverse to them than it

has to secure the revenue obtained from the taking).

Fundamental due process safeguards are designed to provide

property owners with the right to be heard. Due process

entails the right to present objections and not be unwittingly

stripped of property. This right has little meaning if the

owner is not informed of the pending action and given the

opportunity to object. See Greene v. Lindsey, 456 U.S. 444,

449-50, 72 L. Ed. 2d 249, 254-55, 102 S. Ct. 1874, 1877-78

(1982).

Moreover, while duc process does not demand actuai

notice io the property owner (Dusenbery vy. United States,

534 U.S. 161, 170, 151 L. Ed. 2d 597, 606, 122 S, Ct 694,

701 (2002)), the notice provided must be “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” (emphasis added)

(Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657).

Here, the circumstances required Apex to follow up on the

letter carrier's notation that Lowe was hospitalized. Only by

following up on that information would the notice provided

28a

be “reasonably calculated” to afford Lowe notice “under all

the circumstances” known to Apex at the time. The arguably

conflicting information suggesting that Lowe had moved (see

slip op. at 17) did not negate the relevance of the additional!

information on the envelope to Apex’s duty to provide notice

sufficient to satisfy due process. The duty to provide due

process required the notice given to be “reasonably

calculated, under all the circumstances, to apprise” Lowe of

the action. (Emphasis added.) Mullane, 339 U.S. at 314, 94

L. Ed. at 873, 70S. Ct. at 657. See slip op. at 16-17.

Similarly, ignoring information stating that the property

owner is hospitalized does not comply with Apex’s statutory

duty under section 22-15 (35 ILCS 200/22-15 (West 1994)).

Section 22-15 mandates that a tax purchaser exercise

“diligent inquiry and effort” in finding the property owner

and serving a section 22-10 notice. 35 ILCS 200/22-15 (West

1994). The plain and ordinary meaning of “diligent” is

“characterized by steady, earnest, attentive, and energetic

application and effort in a pursuit.” Webster’s Third New

International Dictionary 633 (1993). Under this definition,

Apex’s failure to do anything after being informed that Lowe

was hospitalized cannot reasonably be regarded as even

“diligent inquiry and effort” to locate and serve Lowe.

Nor does the mere possibility that Apex’s inquiries at the

post office may have been unsuccessful in obtaining

information about Lowe’s location or mental-health status

fulfill its due process duty to at least atfempt to provide

notice based on al// available information. Jones, 547 U.S. at

, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713-14 (citing

Dusenbery, 534 U.S. at 170, 151 L. Ed. 2d at 606, 122 S. Ct.

at 701, and Mullane, 339 T.J.S. at 314, 94 L. Ed. at 873, 70

S. Ct. at 657). See slip op. at 17. Surely due process does not

allow the selective acknowledgment of imformation

minimizing the tax purchaser's duty of notification and the

29a

complete disregard of other available information requiring

the “additional reasonable step” of simply inquiring about the

notation at the post office. See Jones, 547 U.S. at__, 164 L.

Ed. 2d at 425, 126 S. Ct. at 1713. Due process is intended,

after all, to provide property owners with a reasonable

opportunity to protect their interests. See Mullane, 339 U.S.

at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. The goal of due

process is not to minimize the notification burden placed on a

tax purchaser.

Finally, requiring Apex to inquire about the letter

carrier’s notation at the post office does not constitute the

type of “open-ended search” rejected by the Jones Court.

Jones, 547 U.S. at__—_—_, 164 L. Ed. 2d at 432, 126 S. Ct. at

1719. Apex would initially be required to take the limited

step of contacting the post office to inquire about the notation

on the returned certified mail envelope indicating that Lowe

was hospitalized. Apex may or may not be required to take

other reasonable and practicable steps to follow up on any

subsequent findings. Jones, 547 U.S. at , 164 L. Ed. 2d at

426, 126 S. Ct. at 1714 (quoting its explanation in Walker v.

City of Hutchinson, 352 U.S. 112, 115, 1 L. Ed. 2d 178, 182,

77S. Ct. 200, 202 (1956), that “the ‘notice required will vary

with circumstances and conditions’”). Regardless of the

outcome of its inquiry, however, Apex would not be obliged

to scour local hospitals in an open-ended search for Lowe.

Thus, because “[u]nder the circumstances presented here,

additional reasonable steps were available” to Apex, | believe

it failed to satisfy its due process obligations. Jones, 547 U.S.

at _, 164 L. Ed. 2d at 425, 126 S. Ct. at 1713. | would

reverse the appellate court judgment and remand for further

proceedings. Therefore. | respectfully dissent from the

majority opinion.

30a

Appendix B

Supreme Court of the United States

No. 05-912

ESTATE OF MARY LOWE, BY ROBERT F. HARRIS,

COOK COUNTY PUBLIC GUARDIAN and

SUPERVISED ADMINISTRATOR,

Petitioner

V.

APEX TAX INVESTMENTS, INC., ET AL.

ON PETITION FOR WRIT OF CERTIORARI to the

Supreme Court of Illinois.

THIS CAUSE having been submitted on the petition for

a writ of certiorari and the response thereto.

ON CONSIDERATION WHEREOPF, it is ordered and

adjuged by this Court that the petition for wnt of certiorari is

granted, and the judgment of the above court in this cause ts

vacated with costs, and the case is remanded to the Supreme

Court of Illinois for further consideration in light of Jones v.

Flowers, 547 U.S. ___ (2006).

iT IS FURTHER ORDERED that the petitioner Estate

ot Mary Lowe by Robert F. Harris, Cook County Public

Guardian and Supervised Administrator recover from Apex

Tax Investments, Inc., et al., Three Hundred Dollars

($300.00) for costs herein expended.

May 22, 2006

3la

Appendix C

Supreme Court of Illinois.

In re APPLICATION OF the COUNTY COLLECTOR for

Judgment and Sale Against Lands and Lots Returned

Delinquent for Nonpayment of General Taxes and/or Special

Assessments for the Years 1991 and Prior Years (Apex Tax

Investments, Inc., et al., Appellees, v. Mary Lowe, Deceased,

by Patrick T. Murphy, Cook County Public Guardian and

Supervised Administrator of the Estate of Mary Lowe,

Appellant).

No. 97165.

Oct. 20, 2005.

Justice MCMORROW delivered the opinion of the court:

Apex Tax Investments, Inc. (Apex), purchased the home

of Mary Lowe at a tax sale and was tssued a tax deed for the

property by order of the circuit court of Cook County.

Subsequently, the Cook County public guardian, on behalf of

the estate of Mary Lowe, filed an amended petition pursuant

to section 2- 1401 of the Code of Civil Procedure (735 ILCS

5/2-1401 (West 1994)) and section 22-45 of the Property Tax

Code (35 ILCS 200/22-45 (West 1994)) seeking to have the

tax deed set aside. In the amended petition, the public

guardian alleged that at the time Apex attempted to provide

Lowe with the notice required by section 22-10 of the

Property Tax Code (35 ILCS 200/22- 10 (West 1994)), Lowe

was hospitalized for schizophrenia. The public guardian

further alleged that Apex should have known of Lowe's

mental impairment based on notations made by a mail carrier

on the envelopes of two letters that were mailed to Lowe but

returned, undelivered. Based on these allegations, the public

32a

guardian contended that Apex had not complied with the

statutory notice requirements of the Property Tax Code and

that Lowe’s “due process right to adequate notice” had been

violated.

Following a hearing, the circuit court denied the public

guardian’s petition. The appellate court affirmed. No. 1-02-

1101 (unpublished order under Supreme Court Rule 23). For

the reasons that follow, we affirm the judgment of the

appellate court.

BACKGROUND

The procedures governing tax sales and the issuance of

tax deeds are set forth in article 21, division 4, and article 22

of the Property Tax Code. 35 ILCS 200/21-190 ef seqg., 22-5

et seq. (West 1994). Pursuant to section 21-190, the county

collector may offer property for public sale when judgment

has been rendered against that property for nonpayment of

real estate taxes. The buyer of property at such a sale does

not receive title to the property but, instead, receives a

“certificate of purchase.” 35 ILCS 200/21-250 (West 1994).

The issuance of a certificate of purchase does not affect the

delinquent property owner’s legal or equitable title to the

property. Phoenix Bond & ‘nceemnity Co. v. Pappas, 194

Il.2d 99, 101, 251 Ill. Dec. 654, 741 N.E.2d 248 (2000). The

property owner has the rigii’ ‘6 redeem the property, upon the

payment of the tax arrearage ard costs, until such time as the

redemption period expires. 35 ILCS 200/21-345 through 21-

355 (West 1996); III. Const.1970, art. IX, § 8.

“(Within 5 months but not less than 3 months prior to

the expiration of the redemption period,” the tax purchaser

may file a petition in the circuit court asking the court to

enter an order directing the county clerk to issue a tax deed to

the property. 35 ILCS 200/22-30 (West 1994). Before the tax

purchaser may receive such an order, however, the

33a

redemption period must expire without any redemption

taking place. In addition, as a condition to receiving a tax

deed order, the tax purchaser must prove to the circuit court

that it has strictly complied with the statutory notice

provisions set forth in sections 22-10 through 22-25 of the

Property Tax Code (35 ILCS 200/22-10 through 22-25 (West

1994)). See 35 ILCS 200/22-40 (West 1994).

In the case at bar, Apex purchased a parcel of residential

real estate at the annual Cook County tax sale held on March

3, 1993. The property was improved with a single-family,

split-level townhouse. On October 5, 1995, Apex filed a

petition for a tax deed to the property in the circuit court of

Cook County. Attached to the petition was Apex’s certificate

of purchase, which indicated that the property had been

purchased for $347.61, the amount of a 1991 tax

delinquency. The petition also stated that the redemption

period expired by extension on February 21, 1996. See 35

ILCS 200/21-385 (West 1994). No redemption occurred by

that date, and Apex’s petition proceeded to an ex parte

hearing before Judge Marjan Staniec on March 18, 1996. See

35 ILCS 200/22-40 (West 1994).

At the hearing, Apex’s attorney informed the court about

the efforts that had been made to comply with the statutory

notice provisions of the Property Tax Code. Apex’s attorncy

told the court that, from a tract search, Apex had learned that

the property at issue was owned by two individuals, Mary

Lowe and William Avzistin, and that this information was

conveyed to the Cook County sheriff and the clerk of the

circuit court of Cook County. On October 26, 1995, in

accordance with section 22-15 of the Property Tax Code (35

ILCS 200/22-15 (West 1994)), the Cook County sheriff

attempted to personally serve Lowe. Austin and “occupant”

with the “take notice” set forth in section 22-10. The section

22-10 take notice must be given “not less than 3 months nor

34a

more than 5 months prior to the expiration of the period of

redemption.” 35 ILCS 200/22- 10 (West 1994). The notice

must state, inter alia, that the property at issue has been sold

for delinquent taxes, that the period of redemption expires on

the date listed, that a petition for a tax deed has been filed,

and that a hearing on the tax deed petition will be held at the

time and place listed. See 35 ILCS 200/22-10 (West 1994).

As required by statute (see 35 ILCS 200/22-20 (West

1994)), the Cook County sheriff filed the returns of service

for the section 22-10 take notices with the clerk of the circuit

court. The returns of service were filed with the clerk on

November 9, 1995, and were admitted into evidence during

the hearing on Apex’s petition. On each of the returns of

service, the deputy sheriff who attempted to serve the notice

wrote “House vacant per neighbors.” The deputy sheriff also

placed a mark next to the word “MOVED” on the preprinted

form to indicate the reason why notice was not served.

Having failed to effect personal service on Austin, Lowe

or “occupant,” the sheriff also sent take notices to them at the

property's address by certified mail, return receipt requested.

See 35 ILCS 200/22-15 (West 1994). These three notices

were returned to the sheriff, undelivered, and were

subsequently filed with the clerk of the circuit court. At the

hearing on Apex’s petition, the envelopes for the three

notices were admitted into evidence. The record on appeal

contains the original, unopened envelope addressed to

Austin, and photocopies of the envelopes addressed to Lowe

and “occupant.”

All three envelopes are postmarked November 8, 1995,

and are stamped “returned to sender.” On the envelope

addressed to Austin, the word “deceased” is handwritten in

pencil on the left side of the envelope. The sheriff filed this

envelope with the clerk of the circuit court on November 22,

1995. The envelopes addressed to Lowe and “occupant” bear

35a

a stamp which indicates that attempts were made to deliver

the notices on November 16, December 11, and December

18, 1995. In addition, on the left side of these two envelopes,

written vertically, is a handwritten notation which reads:

“Person is Hospitalized.” Underneath these notations on both

envelopes, also handwritten, is a number, “2719,” and the

letters “JHT.” The notations on both of the envelopes have a

line drawn through them and are obscured, in part, by the

circuit court clerk’s filing stamp and the post office’s

“returned to sender” stamps. The sheriff filed the envelopes

addressed to Lowe and “occupant” with the clerk of the

circuit court on January 2, 1996. Neither Apex’s attorney nor

the circuit court mentioned the notations on the envelopes at

any time during the hearing on Apex’s tax deed petition.

In accordance with section 22-25 of the Property Tax

Code (35 ILCS 200/22-25 (West 1994)), the clerk of the

circuit court of Cook County also sent take notices by

certified mail addressed to Lowe, Austin and “occupant.”

Like the notices sent by the sheriff, these notices were

returned, undelivered. The notices were filed in the court

record (see 35 ILCS 200/22-25 (West 1994)) and were

admitted into evidence at the hearing. The envelopes for the

notices sent to Austin and “occupant,” as well as a photocopy

of the envelope sent to Lowe, are part of the record on

appeal. All three envelopes are postmarked November 8,

1995, and are stamped “returned to sender.” Notations on the

envelopes indicate that attempts were made to deliver the

notices on November 9, November 15, and November 24,

1995. The clerk of the circuit court filed the notices

addressed to Lowe and “occupant” in the court record on

November 29, 1995, and the notice addressed to Austin on

November 30, 1995.

Pursuant to sections 22-15 and 22-20 of the Property Tax

Code (35 ILCS 200/22-15, 22-20 (West 1994)), Apex also

36a

provided publication notice to Lowe and Austin. The same

notices that were sent by mail to the property were published

in the Chicago Daily Law Bulletin on October 11, October

12, and October 13, 1995.

During the hearing on Apex’s petition, Apex’s attorney

informed the court that Mary Lowe had conveyed her home

through a quitclaim deed to herself and Austin, as joint

tenants, in 1993. Apex’s attorney explained to the court that,

“attempting to be diligent in ascertaining the whereabouts” of

Lowe and Austin, the Cook County sheriff had personally

served the law firm which prepared the 1993 quitclaim deed

with a section 22-10 take notice. In addition, the clerk of the

circuit court sent notice to the firm by certified mail on

November 8, 1995. The First National Bank of Chicago, in

its capacity as a mortgagee of the property, was also

personally served with a take notice on October 24, 1995.

And, the clerk of the circuit court sent notice by certified

mail to the bank on November 8, 1995.

Apex’s agent, Fred Berke, also testified at the hearing

regarding the efforts Apex made to locate Lowe and Austin.

Berke stated that he had visited the property at issue and

inspected it on Apex’s behalf. Berke testified that after

arriving at the townhouse, he knocked on the door and

looked in the living room window. He saw no furniture

inside the home. He also spoke to a next-door neighbor who

told him that the owner of the property was “the Lowes” but

that no one was currently living there. Berke told the court

that the home appeared to be uninhabited.

Finally, Apex’s attorney stated to the court that, after

taking the preceding actions, and after checking city and

suburban phone directories and voter registration records,

Apex was “unable to develop any address for William Austin

or Mary Lowe other than the subject property address.”

37a

According to Apex’s attorney, “all regular efforts” to locate

Lowe and Austin had “proved fruitless.”

At the close of the hearing, the circuit court found that the

redemption period had expired and that no redemption had

been made. The court further found that Apex had complied

with the notice provisions of the Property Tax Code. The

court found, in particular, that Apex had exercised “due

diligence” in attempting to locate Lowe and Austin, thereby

satisfying the requirement set forth in section 22-15 that the

tax purchaser make a “diligent inquiry” to find the property

owner and interested parties. 35 ILCS 200/22-15 (West

1994). The circuit court continued the matter to allow Apex

to provide a transcript of the proceedings and to submit proof

of its payment of taxes for the years subsequent to 1991. See

35 ILCS 200/22-40 (West 1994). Thereafter, on May 20,

1996, the circuit court entered a written order which stated

that, “upon proofs and exhibits heard and offered in open

court,” the court had found that Apex “fully complied with

all of the Statutes and the Constitution of the State of Illinois

relating to sales of real estate for taxes and the issuance of tax

deeds pursuant thereto.” The order directed the county clerk

to issue Apex a tax deed to the property, and the deed was

issued that same day.

Approximately seven months later, on December 6, 1996,

Apex entered into an installment contract to sell the property

to a third-party, John Herndon. Under the terms of this

contract, Herndon was to pay a total of $10,000 for the

property, with $3,000 in earnest money to be applied to the

purchase price, and a $2,000 payment due on December 9,

1996. The final installment payment was due March 31,

1999. In deposition testimony taken on March 10, 1999,

Herndon stated that he had made a $3,000 and a $2.000

payment to Apex, but that he had not, as of that date, paid

anything further on the contract. He also stated that he had

38a

not closed on the home, and that he had not received a deed

for the property.

Herndon further stated in his deposition testimony that

the property was in substantial disrepair when he purchased

it. According to Herndon, there was garbage and water

throughout the house, windows were broken, and the front

door was “wide open.” Herndon described the home as “‘an

abandoned building.” Herndon stated that, after entering into

the installment contract with Apex, he invested over $20,000

in material and labor into renovating the property. Although

it is not clear from the record precisely when these

renovations began, it appears that they were completed by

early 1998.

Approximately nine months after Apex entered into the

contract with Herndon, on September 5, 1997, two of Mary

Lowe’s sons, Bruce and Mario Lowe, filed a pro se petition

for “Restoration of Property Ownership” in the circuit court

of Cook County. In this petition, Bruce Lowe stated that his

mother had “been in and out of various mental facilities for

the past 30 years of her life,” and that she had been

hospitalized in a mental health facility from August 26, 1995,

to December 17, 1996. Bruce further stated that his mother

had been released to his custody and that she was currently

residing with him in California. Bruce also contended in the

petition that personal service on an incompetent individual

violates the individual’s mght to due process and asked the

court to “reinstate full rights of ownership to Mary Lowe.”

Based on Bruce Lowe's allegation that his mother was

mentally disabled, the circuit court appointed the Cook

County public guardian to represent Mary Lowe in early

November 1997. On November 10, 1997, the public guardian

filed a petition pursuant to section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 1994)) and

section 22-45 of the Property Tax Code (35 ILCS 200/22-45

39a

(West 1994)), seeking to have the tax deed that had been

issued to Apex set aside. An amended petition was filed on

April 17, 1998.

In the amended petition, the public guardian alleged that

Mary Lowe suffered from schizophrenia and that she had

been hospitalized in the Tinley Park Mental Health Center at

the time the section 22-10 take notices were sent to her

property in November 1995. The petition also noted that two

of the notices mailed by the Cook County shenff had been

returned with the notations “Person is hospitalized 2719

JHT” written on the envelopes. The petition alleged that

these notations were written by a mail carrier, Jewel

Hightower, and that the number “2719” was her postal route

number and the letters “JHT” were her initials. The petition

further alleged that Apex never attempted to contact

Hightower or the post office. Therefore, according to the

public guardian, Apex “failed to make a diligent inquiry” as

to the whereabouts of Mary Lowe and failed to satisfy the

notice requirements of the Property Tax Code.

The public guardian's petition also asserted that Mary

Lowe had been denied her “due process mght to adequate

notice” prior to the deprivation of her real property. In

support of this contention, the public guardian cited to Covey

v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed.

1021 (1956), wherein the Supreme Court held that “[nJotice

to a person known to be an incompetent who ts without the

protection of a guardian does not measure up to [the

requirements of due process].” Covey, 351 U.S. at 146, 76

S.Ct. at 727, 100 L.Ed. 1026. In addition. the petition

asserted that Lowe's due process mghts were violated

because, given Lowe’s mental disability, even if she had

received the notices mailed by Apex to her home, those

notices would have been meaningless to her.

40a

On August 12, 1998, John Herndon filed a motion to

dismiss the public guardian’s amended petition. In this

petition, Herndon contended that, by virtue of his December

6, 1996, contract with Apex, he was a bona fide purchaser of

the property at issue. In a subsequent filing, Herndon further

contended that, after he paid $5,000 to Apex under the

installment contract, and spent over $20,000 in

improvements on the property, an equitable conversion

occurred (see Shay v. Penrose, 25 1.2d 447, 185 N.E.2d 218

(1962)), and he became a bona fide purchaser of the property

on this basis as well. Citing to subsection (e) of section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(e)

(West 1994)) Herndon argued that a bona fide purchaser's

interest in property cannot be affected by the filing of a

section 2-1401 petition and, therefore, that the public

guardian’s amended petition should be dismissed.

In written order entered on June 8, 1999, the circuit court

rejected Herndon’s arguments. Relying on Daniels v.

Anderson, 162 Ill.2d 47, 60-61, 204 IIl.Dec. 666, 642 N.E.2d

128 (1994), the court determined that Herndon’s contract

with Apex did not render Herndon a bona fide purchaser

because Herndon had knowledge of Mary Lowe’s interest in

the property in August 1998, several months before he would

have acquired title to the property under the terms of the

contract. The circuit court also rejected Herndon’s equitable

conversion theory. The court reasoned that Apex knew or

should have known that Lowe was hospitalized, based on the

notations written by Jewel Hightower on the returned

envelopes. The circuit court concluded, without further

elaboration, that Apex’s actual or constructive knowledge of

Lowe's hospitalization should be imputed to Herndon and,

therefore, that the “equitable conversion theory [was] not

applicable and that Herndon at his own risk undertook to

purchase and to rehab the property.”

4la

On August 18, 2000, the public guardian filed a motion

to stay proceedings. In this motion, the public guardian stated

that it had recently learned that Mary Lowe died on

November 15, 1998, and that since that time, Bruce Lowe

had “fraudulently misrepresented to the Public Guardian”

that she was alive’. The public guardian sought to stay the

proceedings, “pending the appointment of an appropriate

representative, for the estate of May Lowe, to pursue the

Petition to Set Aside the Tax Deed.” On September 6, 2000,

the circuit court entered an order dismissing the amended

petition to set aside the tax deed.

Thereafter, the probate division of the circuit court of

Cook County entered an order appointing the public guardian

as administrator to collect for the estate of Mary Lowe. The

public guardian then filed a motion to vacate the circuit

court’s order of September 6, 2000, and to substitute the

public guardian as the proper party to prosecute the amended

petition to set aside the tax deed. In a written filing, Apex

contested this motion. Apex disputed whether the public

guardian had, in fact, ever been appointed to represent Mary

Lowe, and further contended that any such representation of

Mary Lowe should not have been permitted under the

relevant statutory authority. In response, the public guardian

submitted a written filing that included an affidavit from

Judge Staniec, who had retired from the bench in July 1999.

[In this affidavit, Judge Staniec confirmed that he had

appointed the public guardian -to represent Lowe in

November of 1997. Judge Staniec also stated that, if he had

* In a letter to the public guardian, Bruce Lowe apologized for not

disclosing his mother’s death. Bruce stated that he did not inform the

public guardian of Mary Lowe’s death because he was concemed that

“disclosure would furiver delay this matter” and that he would “lose the

support of the Pulse: Guswdian’s Office.”

42a

“been advised that Mary Lowe was hospitalized during the

applicable notice serving periods,” he would not have issued

a tax deed order to Apex. On June 27, 2001, the circuit court

vacated the order of September 6, 2000, and entered an order

substituting the public guardian, now serving § as

administrator to collect for the estate of Mary Lowe, as the

proper party to prosecute the amended petition.

The public guardian’s amended petition to set aside the

tax deed proceeded to an evidentiary hearing on February 20,

2002. At the outset, the circuit court explained that, although

it had been determined that Herndon was not entitled to the

legal status of bona fide purchaser, he would be allowed to

participate in the hearing because he had purchased the

property at issue.

The public guardian was the only litigant to present

testimony at the hearing. Dr. Bernard Rubin, an expert in the

field of psychiatry, was the public guardian’s first witness.

Rubin testified that he reviewed Mary Lowe’s mental-health

records from 1964 through 1996 and spoke to Mary Lowe’s

son, Bruce Lowe, by telephone on four occasions. Rubin

never spoke to, or saw, Mary Lowe.

From his review of her mental-health records, Rubin

concluded that Mary Lowe suffered from disorganized,

chronic schizophrenic disorder, the most severe from of

schizophrenia. Rubin stated that Lowe suffered from

intermittent bouts of schizophrenia from the carly 1960s unti!

1995. In January 1995, following the death of her

companion, William Austin, Lowe was hospitalized briefly

in the Tinley Park Mental Health Center. She was admitted to

that hospital in August 1995 and remained there until her

discharge in December 1996. Rubin stated that. from January

1995 until October 1996, Lowe suffered from a mental

illness, was generally incompetent, and had no capacity to

care for her personal needs or to fulfill social or business

43a

responsibilities. According to Rubin, Lowe would not have

been able to understand, or respond to, legal documents

served upon her between January 1995 and October 1996.

Rubin stated that psychotropic medication began to improve

Lowe’s condition in October 1996 and that she was

subsequently released to the custody of her son.

The public guardian also offered testimony from Jewel

Hightower. Hightower testified that she worked for the

United States Postal Service as a mail carrier and that the

property at issue in this case was on her delivery route.

Hightower stated that she wrote “person is hospitalized” on

the letters sent by the sheriff to Mary Lowe and “occupant”

and returned the letters to their sender. Hightower further

stated that the number “2719,” which appeared under the

words “person is hospitalized,” was her postal route number

and that the letters “JHT” were her initials. Hightower stated

that, although she knew Lowe was in the Tinley Park Mental

Health Center at the time the take notices from the sheriff

were sent to Lowe, she did not provide this information on

the envelopes. According to Hightower, postal regulations

allowed her to note that an addressee was hospitalized but did

not allow her to note anything more specific. Hightower also

explained that someone wanting to learn of Lowe’s exact

whereabouts could have done so if they had come to the post

office and filled out the “proper forms.”’ Hightower stated

that neither she, nor anyone at the post office, was contacted

about the notations on the envelopes.

* Hightower did not further identify the statue or regulation which would

authorize the postal service to disclose Mary Lowe's hospitalization in a

mental-health facility.

44a

On April 9, 2002, the circuit court denied the public

guardian’s amended petition to set aside the tax deed. In a

ruling issued from the bench, the circuit court noted that the

amended petition was brought under section 2-1401 of the

Code of Civil Procedure (735 ILCS 5/2-1401 (West 1994))

as limited by section 22-45 of the Property Tax Code (35

ILCS 200/22-45 (West 1994)). The court further noted that

under subsection (3) of section 22-45 of the Property Tax

Code, a tax deed may be set aside when there is “proof by

clear and convincing evidence” that the tax deed order was

“procured by fraud or deception.” 35 ILCS 200/22-45(3)

(West 1994). The circuit court reviewed the evidence of

record and concluded that Apex had not procured its tax deed

order through fraud or deception.

With respect to the public guardian’s constitutional

arguments, the circuit court stated that the notice provisions

of the Property Tax Code, “as applied, can result in a due

process violation where a person with an interest in the

property is mentally incompetent and the tax deed petitioner

either knew or reasonably should have known [of] that

disability.” The circuit court found that Dr. Rubin’s opinion

that Mary Lowe was incompetent was correct and noted that

“given Ms. Lowe’s capacity, even if she had received that

notice, she wouldn’t have been able, in all likelihood, to

understand or act upon it.”” However, the circuit court also

noted that an individual may be hospitalized for many

reasons that have nothing to do with mental illness. From

this, the court determined that, even if the notations made by

Jewel Hightower alerted Apex to the fact that Lowe was

hospitalized, that did not mean that Apex knew, or should

have known, that Lowe was mentally impaired. Because

Apex had no knowledge of Lowe's impairment, the court

concluded there was no due process violation.

~,

45a

The appellate court, adopting much of the circuit court’s

reasoning, affirmed. No. 1-02-1101 (unpublished order under

Supreme Court Rule 23). We granted the public guardian’s

petition for leave to appeal. 177 Ill.2d R. 315(a). We also

granted leave to the Mental Health Association in Illinois and

the Mental Health Project of the University of Chicago Law

School’s Edwin F. Mandel Legal Aid Clinic to file an amicus

curiae brief in support of the estate of Mary Lowe.

ANALYSIS

The public guardian advances both statutory and

constitutional grounds for relief. We first consider the public

guardian’s statutory arguments.

Statutory Relief

The public guardian’s petition to set aside the tax deed

issued to Apex is a collateral attack upon the circuit court’s

tax deed order, brought under section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 1994)). Collateral

attacks upon tax deed orders implicate two competing public

policies. On the one hand, “[t]he forced sale of a home is a

grave and melancholy event” (Smith v. D.R.G., Inc., 63 IlL.2d

31, 39, 344 N.E.2d 468 (1976)) that can have severe

consequences for the delinquent taxpayer Allowing a

collateral attack upon the tax deed order provides the

delinquent taxpayer with an opportunity, in addition to the

direct appeal, to ensure that the order was properly obtained.

On the other hand, the availability of a collateral challenge to

the tax deed order tends to undermine the finality and, hence,

the marketability of the tax deed. This point is significant

because tax purchasers participate in the tax sale system in

order to obtain marketable titles. See Filluge of Dolton v.

First National Bank of Blue Island, 12 (12d 435, 440, 147

N.E.2d 62 (1957) (“Our whole system of judicial sales is

based upon the public’s willingness to accept titles thereby

46a

created”). If tax purchasers do not participate in tax sales,

then delinquent taxpayers lose the incentive to pay their real

estate taxes and tax revenues fall. See Cherin v. The R. & C.

Co., 11 Ull.2d 447, 451-53, 143 N.E.2d 235 (1957); G.

Turano, Equitable Relief, Collateral Attack and the Illinois

Tax Deed, 51 Chi.-Kent L.Rev. 725, 725-26 (1975); D.

Karlen & R. Slutzky, A Guide to Tax Deed and Indemnity

Fund Proceedings, in Real Estate Taxation § 11.37, at 11-75

(Ill. Inst. for Cont. Legal Educ.2005) (“Participation by tax

purchasers is essential to the tax collection process because

tax purchasers represent a threat to property owners that will

induce them to make timely payments”).

Over the past several decades, the balance between the

competing policies of ensuring the propriety of tax deed

orders by permitting collateral challenges to such orders, and

preserving the marketability of tax deeds, has been struck in

different ways. In 1951, the legislature substantially revised

the Revenue Act of 1939 (Ill.Rev.Stat.1951, ch. 120, par. 482

et seq.), the predecessor statute to the Property Tax Code. As

this court has frequently noted, these revisions were

undertaken, in large part, to improve the marketability and

validity of tax titles in order to reduce real estate tax

delinquencies. See, e.g., /n re Application of the County

Treasurer, 92 Ill.2d 400, 406, 65 IIl.Dec. 905, 442 N.E.2d

216 (1982) (observing that, before 1951, tax deeds

“amounted to little more than a cloud on the title of the

delinquent owner”); L. Dotson, Note, 40 Chi.-Kent L.Rev.

155, 157-58 (1963). Prior to the 1951 revisions, the decision

as to whether the statutory requirements for obtaining a tax

deed had been met, including whether notice requirements

had been satisfied, was made administratively, by the county

clerk. The 1951 revisions altered this practice and made the

issuance of the tax deed a judicial decision, made by the

county court upon petition. Ill.Rev.Stat.1951, ch. 120, par.

747; In re Application of the County Treasurer, 214 IUb2d

47a

253, 262, 291 Ill.Dec. 758, 824 N.E.2d 614 (2005); Cherin,

11 Wl.2d at 451-53, 143 N.E.2d 235. Section 266 of the

Revenue Act was also amended to provide that the tax deed

order would be “incontestable” except by direct appeal.

Ill.Rev.Stat.1951, ch. 120, par. 747; Cherin, 11 Ill.2d at 453,

143 N.E.2d 235. No provision in the Revenue Act allowed

for collateral challenges to the tax deed order. Further,

section 266 was amended to state that it was to “be liberally

construed so that tax deeds herein provided for shall convey

merchantable title.” [ll.Rev.Stat.1951, ch. 120, par. 747.

Seven years after the 1951 revisions to the Revenue Act,

in Southmoor Bank & Trust Co. v. Willis, 15 Ill.2d 388. 155

N.E.2d 308 (1958), this court addressed the “deiicate

problem” of construing section 266 of the Revenue Act,

which, as noted, did not permit collateral attacks upon tax

deed orders, with section 72 of the Civil Practice Act

(Ill.Rev.Stat.1957, ch. 110, par. 72), the statutory predecessor

to section 2-1401. Southmoor Bank, 15 Ill.2d at 394, 155

N.E.2d 308. Examining the two statutes, this court observed

that section 72 established a uniform procedure “for

obtaining relief from all final orders, judgments and decrees

within its purview.” Southmoor Bank, 15 Ill.2d at 394-95,

155 N.E.2d 308. Reasoning that section 72 and section 266

of the Revenue Act were in pari materia. we concluded “that

the legislature desired to render tax titles incontestable except

by direct appeal, subject to the provisions of section 72 of the

Civil Practice Act.” Southmoor Bank, 15 Ill.2d at 394, 155

N.E.2d 308. The court further noted, however, that unless a

lack of jurisdiction affirmatively appeared on the record, “the

prior finding of the county court of compliance with all the

provisions of law entitling petitioner to a tax deed could not *

* * be disputed in [the section 72] proceeding.” Southmoor

Bank, 15 Ill.2d at 396, 155 N.E.2d 308.

48a

In Remer v. Interstate Bond Co., 21 Ill.2d 504, 173

N.E.2d 425 (1961), this court again observed that a county

court’s findings that the statutory prerequisites to issuing a

tax deed had been complied with could not be challenged

collaterally, unless a lack of jurisdiction appeared on the face

of the record. Remer, 21 Ill.2d at 510, 173 N.E.2d 425.

However, this court also stated that allegations of fraud could

be raised in a collateral attack upon the tax deed order. We

reasoned that such allegations fit within the requirements of

section 72 and that “elementary principles of law require that

relief be granted” where “proceedings regular in form are

tainted with fraud and coercion.” Remer, 21 IIl.2d at 514, 173

N.E.2d 425. Thereafter, in Urban v. Lois, Inc., 29 ill.2d 542,

194 N.E.2d 294 (1963), we reiterated this rule, stating:

“It has been well established in tax-deed

proceedings that section 72 cannot be used as a

vehicle to relitigate any issue already passed on by

the trial court, in the absence of fraud.” Urban, 29

[ll.2d at 548, 194 N.E.2d 294.

In so holding, we explained why the scope of collateral

attack upon the tax deed order was a limited one:

“If we were to hold otherwise, we would abrogate

the efficacy of the 1951 amendments to the Revenue

Act, and would defeat the desired conclusiveness of

the county court’s ofder for the issuance of a tax

deed. The consequent effect upon the merchantability

of tax titles would place the annual sale in the same

status as existed before the 1951 amendments and

which the legislature intended to change.” Urban, 29

[1].2d at 549, 194 N.E.2d 294.

In 1967, the legislature amended section 266 of the

Revenue Act to state that relief from an order granting a tax

deed could be had under section 72 of the Civil Practice Act,

thereby expressly confirming this court’s holding to that

49a

effect in Southmoor Bank. See IIl.Rev.Stat.1967, ch. 120,

par. 747.

In 1982, in /n re Application of the County Treasurer, 92

[11.2d 400, 408, 65 Ill.Dec. 905, 442 N.E.2d 216 (1982), this

court again addressed the scope of collateral relief available

in tax deed cases. After reviewing the relevant case law, as

well as various revisions that had been made to the Revenue

Act by the General Assembly, we concluded that the

legislature intended to protect tax deed orders from collateral

attack “on questions relating to notice.” County Treasurer,

92 Iil.2d at 408, 65 IllDec. 905, 442 N.E.2d 216.

Accordingly, we chose to “adhere to our previous holdings

that section 72 relief in tax-deed cases is limited to those

cases where fraud is proved or the judgment is void.” County

Treasurer, 92 \1l.2d at 408, 65 Ill.Dec. 905, 442 N.E.2d 216.

During the 1990s, the legislature twice addressed the

issue of collateral challenges to tax deed orders. In

amendments to section 266 of the Revenue Act that were

adopted in 1990, the General Assembly codified the holdings

of decisions such as County Treasurer and Urban with

respect to the grounds for relief that are available in a

collateral attack upon a tax deed order. See 86th Ill. Gen.

Assem., Senate Proceedings, May 10, 1990, at 62 (statements

of Senator Lechowicz). in addition, the legislature created a

new, statutory ground for collateral relief that is available in

certain circumstances where the tax deed order “was

effectuated pursuant to a negligent or willful error made by

an employee of the county clerk or county collector.”

[ll.Rev.Stat.1991, ch. 120, par. 747. Also, the 1990

amendments added language to section 266 which states that

the grounds for relief that are available in a collateral attack

upon a tax deed order “shall be limited” to those enumerated

in the statute. See Ill.Rev.Stat.1991, ch. 120, par. 747.

50a

In 1993, the General Assembly created an additional

statutory ground for collateral relief from a tax deed order.

Generally stated, this ground may be invoked by a person or

party with a recorded interest in the tax deed property who

was not served with notice in any manner whatsoever. See 35

ILCS 200/22-45(4) (West 1994).

The amendments enacted by the General Assembly in

1990 and 1993 are currently found in section 22-45 of the

Property Tax Code (35 ILCS 200/22-45 (West 1994)).

Section 22-45 expresses the balance struck by the legislature

between the public policies of allowing collateral relief from

tax deed orders and preserving the marketability of tax deeds.

Section 22-45 provides:

“Tax deeds issued under Section 22-35" are

incontestable except by appeal from the order of the

court directing the county clerk to issue the tax deed.

However, relief from such order may be had under

Section 2-1401 of the Code of Civil Procedure in the

same manner and to the same extent as may be had

under that Section with respect to final orders and

judgments in other proceedings. The grounds for

relief under Section 2-1401 shall be limited to:

(1) proof that the taxes were paid prior to sale;

(2) proof that the property was exempt from

taxation;

(3) proof by clear and convincing evidence that

the tax deed had been procured by fraud or deception

by the tax purchaser or his or her assignee; or

* This reference to “Section 22-35" has been changed to “Section 22-40.”

See 35 ILCS 200/22-45 (West Supp. 204).

Sla

(4) proof by a person or party holding a recorded

ownership or other recorded interest in the property

that he or she was not named as a party in the

publication notice as set forth in Section 22-20, and

that the tax purchaser or his or her assignee did not

make a diligent inquiry and effort to serve that person

or party with the notices required by Sections 22-10

through 22-30.

In cases of the sale of homestead property in

counties with 3,000,000 or more inhabitants, a tax

deed may also be voided by the court upon petition,

filed not more than 3 months after an order for tax

deed was entered, if the court finds that the property

was owner occupied on the expiration date of the

period of redemption and that the order for deed was

effectuated pursuant to a negligent or willful error

made by an employee of the county clerk or county

collector during the period of redemption from the

sale that was reasonably relied upon to the detriment

of any person having a redeemable interest.” 35 ILCS

200/22-45 (West 1994).

In the case at bar, the public guardian argues that the tax

deed issued to Apex should be set aside because there is

“clear and convincing evidence” that the tax decd order was

“procured by fraud or deception.” 35 ILCS 200/22- 45(3)

(West 1994). The public guardian notes that, at the heanng

on Apex’s petition for issuance of a tax deed order, Apex’s

attorney represented to the circuit court that it had strictly

complied with the Property Tax Code’s notice provisions,

that it had been unable to ascertain Mary Lowe's

whereabouts despite having conducted a diligent search, and

that there were “no minors, incompetents, or estates that

appear to have an interest in the property.” The public

guardian contends that “in view of Apex’s willful ignorance

52a

with respect to the notations on the undelivered envelopes”

these representations constitute fraud or deception under

section 22-45 and, therefore, that the tax deed issued to Apex

should be set aside.

In the context of tax deed proceedings, fraud is defined as

“ *a wrongful intent--an act calculated to deceive.’ “ County

Treasurer, 92 \il.2d at 405, 65 Ill.Dec. 905, 442 N.E.2d 216,

quoting Dahlke v. Hawthorne, Lane & Co., 36 Ill.2d 241,

245, 222 N.E.2d 465 (1966); see also Smith v. D.R.G., Inc.,

63 Ill.2d 31, 37, 344 N.E.2d 468 (1976); Exline v. Weldon,

57 Il.2d 105, 110, 311 N.E.2d 102 (1974); Zeve v. Levy, 37

Ill.2d 404, 409, 226 N.E.2d 620 (1967). This level of

wrongdoing has not been established here.

The envelopes with Jewel Hightower’s notations on them

were returned by the post office to their sender, the Cook

County sheriff. The sheriff submitted the envelopes to the

clerk of the circuit court, who then placed the envelopes in

the court file which, by statute, the clerk is required to

maintain in tax deed cases. See, e.g., 35 ILCS 200/22-20, 22-

25 (West 1994). There was nothing unusual or unexpected

about the fact that the envelopes were returned, undelivered.

Both an agent from Apex and a deputy sheriff from the Cook

County sheriff's office had visited the property, found it

vacant, and been told by neighbors that the occupants of the

home had moved. Further, the notations on the envelopes

addressed to Mary Lowe and “occupant,” though legible,

cannot reasonably be called prominent. The notations have a

line drawn through them and they are partially obscured by

the circuit court clerk’s filing stamps and the post office's

“returned to sender” stamps. More important, there is no

evidence that Apex attempted to conceal the notations or

alter the envelopes in any way. To the contrary, the

envelopes were submitted into evidence by Apex along with

the other portions of the record, and the circuit court

53a

explicitly relied upon them in rendering its decision to enter

the tax deed order.

On this record, the most that can be said with respect to

Apex’s actions is that Apex simply failed to discover the

notations on the envelopes. However, as this court has

frequently noted, the failure to undercover a particular fact

during the search for a delinquent taxpayer does not, by

itself, establish fraud. Dahlke, 36 Ill.2d at 246, 222 N.E.2d

465; Exline, 57 I1.2d at 110, 311 N.E.2d 102 (“even if a

more persistent effort could have been made in the conduct

of the search and inquiry [for the delinquent taxpayer], this is

not proof of fraud unless there exists evidence of wrongful

intent or a deceptive design”); Zeve, 37 Ill.2d at 409, 226

N.E.2d 620; see also County Treasurer, 92 I11.2d at 407-09,

65 Ill.Dec. 905, 442 N.E.2d 216 (error in service which was

at most negligence did not constitute fraud). Moreover, the

fact that the envelopes were submitted into evidence and

relied upon by the circuit court is a strong indication that

there was no deceptive or fraudulent act on the part of Apex.

See /n re Application of the County Treasurer & ex officio

County Collector, 267 Ill.App.3d 993, 998-99, 204 Ill.Dec.

840, 642 N.E.2d 741 (1994) (no deceptive act takes place

when all relevant information is openly presented to the

court); /n re Application for Judgment & Sale by the County

Treasurer & ex officio County Collector, 276 Ill.App.3d

1084, 1090, 213 IIl.Dec. 541, 659 N.E.2d 457 (1995) (same);

In re Application of County Treasurer & Ex-Officio County

Collector, 20 Ill. App.3d 291, 298, 314 N.E.2d 300 (1974)

(same).

The record in this case does not show, by clear and

convincing evidence, “a wrongful intent” or “an act

calculated to deceive.” Dahl/ke, 36 Il.2d at 245, 222 N.E.2d

465. Accordingly, we affirm the circuit court’s judgment that

the tax deed order was not obtained by fraud or deception.

54a

Citing to /n re Application of the County Collector for

Judgment & Order of Sale Against Lands & Lots Returned

Delinquent for Nonpayment of General Taxes for the Year

1982 & Prior Years, 202 Ill.App.3d 405, 147 Iil.Dec. 666,

559 N.E.2d 1006 (1990), the public guardian also argues that,

even if Apex’s actions were not fraudulent, this court should

invoke its “equitable powers” to void the tax deed order and

return the property at issue to Mary Lowe’s estate. The

public guardian argues that Mary Lowe lost her home

through no fault of her own, and emphasizes that Judge

Staniec, in the affidavit which he submitted to the circuit

court, stated that he would not have issued the tax deed order

if he had known that Lowe was hospitalized in 1995 and

1996. According to the public guardian, it would be unjust

not to allow Lowe’s estate to recover the property and,

therefore, under principles of equity, the tax deed should be

set aside.

In County Collector, a tract search prepared from a title

company’s own tract indices, rather than official public

records, failed to disclose a properly recorded mortgage.

Relying on the results of the tract search, and not knowing

that the results were inaccurate, the circuit court issued a tax

deed order. County Collector, 202 Ill.App.3d at 408-09, 147

Ill.Dec. 666, 559 N.E.2d 1006. Thereafter, the holder of the

properly recorded mortgage filed a section 2-1401 petition,

seeking to have the iax deed set aside. Because the tax deed

order had not been obtained by fraud, the circuit court

declined to vacate it. However, the circuit court stated that it

would not have issued the tax deed order had it known of the

recorded interest and expressed the opinion that, were equity

to apply, the tax deed should be set aside. County Collector,

202 Il. App.3d at 409-10, 147 IIl.Dec. 666, 559 N.E.2d 1006.

On appeal, the appellate court reversed. Citing to /n re

Application of the County Treasurer & Ex Officio County

55a

Collector of Cook County, Illinois, for Judgment & Order of

Sale Against Real Estate Rendered Delinquent for the

Nonpayment of 1980 Taxes, 185 Ill.App.3d 789, 134 II1.Dec.

218, 542 N.E.2d 397 (1989), and Jn re Application of the

County Treasurer & Ex Officio County Collector, \7\

Ill.App.3d 644, 121 Ill.Dec. 545, 525 N.E.2d 852 (1987), two

cases in which tax deeds were set aside because of errors

committed by the county clerk, the appellate court concluded

that not all circumstances under which tax deeds should be

set aside fit within the framework of fraud. The appellate

court held that “equitable principles” may be relied upon by

the courts under section 2-1401 “to afford relief for parties

who, through no fault of their own (and through no fraud by

any party), stand to lose property in which they have a

considerable interest.” County Collector, 202 Ill.App.3d at

414-15, 147 Ill. Dec. 666, 559 N.E.2d 1006. The appellate

court observed that the case before it was one in which “ ‘no

attempt was made to serve the interested party by any

means’ (County Collector, 202 UlLApp.3d at 413, 147 IIL.

Dec. 666, 559 N.E.2d 1006), and that it would be unjust to Ict

the tax deed stand. Accordingly, the appellate court vacated

the tax deed order. County Collector, 202 Il. App.3d at 416-

17, 147 Ill. Dec. 666, 559 N.E.2d 1006.

County Collector, and the appellate decisions it relied

upon, are not helpful to the public guardian in the case at bar

because those cases were decided prior to the passage of the

1990 amendments to section 266 of the Revenue Act. At the

time County Collector was decided, section 266 stated that

relief from tax deed orders could be had under section 2-140]

“in the same manner, upon the same grounds and to the same

extent as may be had under that Section with respect to final

orders, and judgments in other proceedings.”

Il.Rev.Stat.1989, ch. 120, par. 747. The scope of collateral

challenges to tax deed orders was thus a matter of judicial

decision as to what constituted appropriate grounds for relief

eee emer

S6a

under section 2-1401. See, eg., County Collector, 202

[ll.App.3d at 410, 147 Ill.Dec. 666, 559 N.E.2d 1006. After

the passage of the 1990 amendments, this was no longer the

case. The 1990 amendments added language, currently found

in section 22-45 of the Property Tax Code, which states that

“(tlhe grounds for relief under Section 2-1401 shall be

limited to” those enumerated in the statute. 35 ILCS 200/22-

45 (West 1994). General, “equitable principles” is not one of

the grounds for relief listed in section 22-45.

Further, we note that the result reached by County

Collector, i.e., that a party with a recorded interest in

property who receives no section 22-10 notice whatsoever

may seek relief under section 2-1401, has been codified by

the General Assembly in section 22-45(4) (35 ILCS 200/22-

45(4) (West 1994)). In addition, clerical error has been added

as a basis for redemption. See 35 ILCS 200/22-45 (West

1996). However, while the General Assembly has enacted

these specific grounds for relief, it has not enacted the

broader holding, found in County Collector, that general,

equitable principles are a basis for relief in all collateral

challenges to tax deed orders brought under section 2-1401.

At present, section 22-45 does not contain, as a ground

for relief, a general equity provision. See /n re Application of

the County Treasurer & ex officio County Collector, 304

I.App.3d 502, 505, 238 Ill.Dec. 109, 710 N.E.2d 906

(1999): In re McKeever, 132 B.R. 996, 1015

(Bankr.N.D.111.1991); D. Karlen & R. Slutzky, 4 Guide to

Tax Deed and Indemnity Fund Proceedings, in Real Estate

Taxation $ 11.31, at 11-63 (Ill. Inst. for Cont. Legal

Educ.2005). Accordingly, we may not consider the public

guardian’s argument that the tax deed at issue in this case

should be set aside. under section 2-]401, based on equitable

principles.

S7a

This is not to say, however, that the General Assembly is

unconcerned about achieving equity in cases such as this, or

that Mary Lowe’s estate has no statutory remedy. As the

circuit court below noted, an alternative form of relief is

available to Lowe’s estate under the indemnity provisions of

the Property Tax Code. See 35 ILCS 200/21-295 et seg.

(West 1994). The indemnity provisions were enacted by the

legislature in 1970 in recognition of the fact that taxes may

go unpaid, and property may be lost to a tax deed, because of

circumstances such as mental or physical disability that are

beyond the property owner’s control. See G. Turano,

Equitable Relief, Collateral Attack and the Illinois Tax Deed,

51 Chi-Kent L.Rev. 725, 733 (1974). The provisions create

an indemnity fund, from which, pursuant to section 21-305

(35 ILCS 200/21-305 (West 1994)), the former property

owner may seek a monetary award for the loss of property.

At the time relevant here, section 21-305 provided:

“(a) Any owner of property sold under any

provision of this Code, who without fault or

negligence of his or her own sustains loss or damage

by reason of the issuance of a tax deed under Sections

22-40 or 21-445 and who is barred or in any way

precluded from bringing an action for the recovery of

the property or any owner of property containing 4 or

less dwelling units who resided thereon the last day of

the period of redemption who, in the opinion of the

Court which issued the tax deed order, is equitably

entitled to just compensation, has the right to

indemnity for the loss or damage sustained.

Indemnity shall be limited to the fair cash value of the

58a

property as of the date that the tax deed was issued,

less any mortgages or liens thereon.”

* * * The Court shall liberally construe this Section to

provide compensation wherever in the discretion of the Court

the equities warrant such action.” 35 ILCS 200/21-305 (West

1994).

Section 21-305 is well suited to achieve equity in this

case. Mary Lowe is deceased. Moreover, although the record

does not indicate when any member of Lowe’s family last

resided in her former home, at a minium, it would have been

sometime before Lowe’s hospitalization in 1995. Thus, in

this case, the importance of the property at issue is not as a

place of residence to Mary Lowe or her family, but as the

primary asset in Lowe’s estate. The indemnity fund can fully

compensate Lowe’s estate for the monetary value of the

property. Further, John Herndon has indicated that, if the tax

deed is set aside and the property returned to Lowe’s estate,

he will pursue an action against the estate to recover the

$20,000 worth of improvements he made to the home. Even

if such action proves unsuccessful, the estate would bear the

cost of defending against the action. Using the indemnity

provisions can give the estate the full value of the property

without having to withstand the time and expense of any

legal action brought by Herndon.

* Sections 21-305 has since been amended to make clear that an owner

who resides on property with four or fewer dwelling units, and who is

seeking an award of $99,000 or less, may recover from the indemnity

funds by showing equitable entitlement. The owner does not have to

show a lack of fault or lack of negligence for the loss. 35 1LCS 200.21-

305 (West 2000). See also Hedrick v Bathon, 319 Ul. App. 3d 599

(2001).

59a |

The General Assembly enacted the indemnity provisions

to address situations such as that presented in the case at bar.

The record indicates that the public guardian has filed a

petition for indemnification on behalf of Mary Lowe and that

the petition remains pending in the circuit court. After issuing

its ruling in this case, the circuit court strongly urged the

public guardian to continue the indemnification action on

behalf of Mary Lowe’s estate. We do so as well.

Due Process Notice

The public guardian argues that the tax deed issued to

Apex should be set aside because Mary Lowe was denied her

“due process right to adequate notice” under the United

States and Illinois Constitutions (U.S. Const., amend. XIV, §

1; Ill. Const.1970, art. I, §2) prior to the deprivation of her

property.

The public guardian’s due process argument focuses on

the period from August 26, 1995, to December 17, 1996,

when Lowe was hospitalized in the Tinley Park Mental

Health Center with schizophrenia. It was during this time that

Apex filed its petition f-- a tax deed and that Apex attempted

to provide Lowe with the section 22-10 take notice pursuant

to the procedures described in sections 22-15 through 22-25

of the Property Tax Code (35 ILCS 200/22- 15 through 22-

25 (West 1994)). We note, however, that under the Property

Tax Code, a number of notice procedures must take place

prior to the delivery and publication of the section 22-10 take

notice. For example, before the county collector may offer a

property for sale due to delinquent taxes, it must file an

application for judgment and order of sale in the circuit court.

The county collector must send notice of the application for

judgment by certified or registered mail to the party in whose

name the property taxes were last assessed not less than 15

days before the date of application for judgment is filed. See

35 ILCS 200/21-135 (West 1994). In addition. the collector

60a

must publish notice of its intent to file the application for

judgment at least 10 days before the application is filed. See

35 ILCS 200/21-110, 21-115 (West 19° ;. Pursuant to

section 21-175 (35 ILCS 200/21-175 (‘Vest 1994)), the

county collector must present the application for judgment to

the circuit court. At that time, those parties who wish to

contest the application may appear and file objections.

Rosewell v. Chicazo Title & Trust Co., 99 I11.2d 407, 414, 76

Il]. Dec. 831, 459 N.E.2d 966 (1984).

Once the circuit court has entered an order of sale, and

the tax sale has been completed, additional notice must be

provided. Section 22-5 of the Property Tax Code requires the

county clerk to send a “take notice” by registered or certified

mail to the party in whose name the taxes were last assessed,

“within 5 months’ after the date of the tax sale. See 35 ILCS

200/22-5 (West 1994). The section 22-5 take notice is

similar, though not identical, to the section 22-10 take notice.

The section 22-5 take notice must state, inter alia, that the

property has been sold for delinquent taxes, that a petition for

a tax deed will be filed, and that the taxpayer has a right to

redeem the property by the date listed.’ [FN6] However,

unlike the section 22-10 take notice, the section 22-5 take

notice does not include the time and place the petition for the

tax deed order will be heard: See 35 ILCS 200/22- 5, 22-10

(West 1994).

* Section 22-5 has since been amended to state that the notice in that

provision must be given “within 4 months and 15 days” of the tax sale.

35 ILCS 200/22-5 (West 2000).

’ The date listed for the expiration of the redemption period may differ

between the section 22-5 take notice and the section 22-10 take notice

depending on whether the tax purchaser extends the redemption period

and, 1f so, when that extension is made. See 35 ILCS 200/21-385 (West

1994)

6la

In the case at bar, it is undisputed that Mary Lowe was

mentally incapacitated from January 1995 through October

1996. However, the tax sale in this case, and the time periods

for the procedures noted above, occurred in 1993. The circuit

court made no finding regarding the competency, or

incompetency, of Mary Lowe in 1993. M-reover, while Dr.

Rubin testified as to Lowe’s incapacity in 1995 and 1996, he

did not testify with respect to her condition in 1993. Thus, it

appears that, prior to the deprivation of her property, and at a

time when there is no finding of record that she was

incompetent, Lowe was given notice of the application for

judgment and order of tax sale, had an opportunity to object

to the application for judgment, was given notice that the tax

sale had occurred, and was given notice that she had the right

to redeem her property.

The fact that the Property Tax Code contains several

notice procedures that must be undertaken before the delivery

and publication of the section 22-10 take notice raises an

important question. In deciding whether Mary Lowe was

denied her due process right to notice prior to the deprivation

of her real property, should all of the tax sale and tax deed

notice procedures found in the Property Tax Code--including

the notice of the application for judgment and order of sale

and the section 22-5 take notice--be considered? Or, as the

public guardian suggests, should the procedures regarding the

section 22-10 take notice be considered by themselves?

In Rosewell v. Chicago Title & Trust Co., 99 Ill.2d 407,

76 Ill.Dec. 831, 459 N.E.2d 966 (1984), this court considered

“whether due process requires the county collector to give

personal notice of an impending tax sale to all parties with an

interest in the real estate.” Rosewel/, 99 Ill.2d at 410, 76

ll.Dec. 831, 459 N.E.2d 966. In answering this question in

the negative, we examined the Property Tax Code as a whole

and took note of the notice procedures, other than the notice

62a

provided for the tax sale, that are found in the ?roperty Tax

Code. We concluded that due process does not require that

all interested parties receive personal notice of the tax sale in

part because, after the tax sale occurs, the Property Tax Code

requires that the interested parties receive notice by mail of

the right to redemption. Only after this notice is sent are the

parties’ interests in the property finally terminated by the

issuance of tie tax deed order. Rosewell, 99 IIl.2d at 414-16,

76 Ill.Dec. 831, 459 N.E.2d 966. In the case at bar, neither

party addresses the analysis employed in Rosewe// or

discusses what effect, if any, compliance with the statutory

notice procedures that precede the delivery and publication of

the section 22-10 take notice would have on the public

guardian’s argument that due process was not satisfied in this

case. However, we need not attempt to resolve this issue sua

sponte. For reasons that follow, we conclude that, even if our

due process analysis is limited solely to a consideration of

the procedures involving the section 22-10 take notice, and to

the time period from 1995 to 1996, there is no basis for

reversing the judgment of the appellate court.

The standard for determining whether statutory notice

procedures meet the requirements of due process is set forth

in Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). See Rosewell, 99

Ill.2d at 411-12, 76 Ill.Dec. 831, 459 N.E.2d 966 (applying

Mullane to a claim brought against the Property Tax Code

under the due process clause of the Illinois Constitution). At

issue in Mullane was whether notice that was published in a

newspaper in order to inform the beneficiaries of a common

trust of a judicial settlement satisfied due process.

Addressing this issue, the Supreme Court stated what has

become the widely accepted test for determining the

constitutionality of notice procedures:

63a

“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.” Mullane,

339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873.

In adopting the “reasonably calculated” standard, the

Court explained that the method used to provide notice “must

be such as one desirous of actually informing the absentee

might reasonably adopt to accomplish it” and that “when

notice is a person’s due, process which is a mere gesture is

not due process.” Mullane, 339 U.S. at 315, 70 S.Ct. at 657,

94 L.Ed. at 874. The Court also emphasized, however, that

“if with due regard for the practicalities and peculiarities of

the case” the notice procedure reasonably conveys the

necessary information, then “the constitutional requirements

are satisfied.” Mu/lane, 339 U.S. at 314-15, 70 S.Ct. at 657,

94 L.Ed. at 873. Applying these principles to the issue before

it, the Court held that notice by publication was sufficient for

those beneficiaries ““whose interests or whereabouts could not

with due diligence be ascertained.” Mullane, 339 U.S. at 317,

70 S.Ct. at 659, 94 L.Ed. at 875. However, publication notice

was not sufficient for those “known present beneficiaries of

known place of residence.” Mullane, 339 U.S. at 318-20, 70

S.Ct. at 659-60, 94 L.Ed. at 875-76.

In 1983, in Mennonite Board of Missions v. Adams, 462

U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the

Supreme Court considered the principles announced in

Mullane within the context of a tax sale. At issue in

Mennonite was the constitutionality of an Indiana statute that

provided notice to a mortgagee of a pending tax sale only by

publication. The Court held the statutory procedure invalid,

stating that “[nJotice by mail or other means as certain to

64a

ensure actual notice is a minimum constitutional precondition

to a proceeding which will adversely affect the liberty or

property interests of any party * * * if its name and address

are reasonably ascertainable.” (Emphasis in original.)

Mennonite, 462 U.S. at 800, 103 S.Ct. at 2712, 77 L.Ed.2d at

188. In so holding, the Court stated that a governmental body

charged with providing notice must make “reasonably

diligent efforts” to locate the party to whom notice is being

provided, but also stressed that the government is not

“required to undertake extraordinary efforts to discover the

identity and whereabouts of a [party] whose identity is not in

the public record.” Mennonite, 462 U.S. at 798 n. 4, 103

S.Ct. at 2711 n. 4, 77 L.Ed.2d at 187 n. 4. See also Tulsa

Professional Collection Services, Inc. v. Pope, 485 U.S. 478,

490, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565, 578 (1988) (the

executor of an estate must make “ ‘reasonably diligent

efforts’ “* “to uncover the identities of creditors. For creditors

who are not ‘reasonably ascertainable,’ publication notice

can suffice”), quoting Mennonite, 462 U.S. at 798 n. 4, 103

S.Ct. at 2711 n. 4, 77 L.Ed.2d at 187 n. 4.

The notice procedures in the Property Tax Code have

been held constitutional under Mullane and Mennonite by

this court and others. See Rosewell, 99 Ill.2d 407, 76 IIl.Dec.

831, 459 N.E.2d 966; Balthazar v. Mari Ltd., 301 F.Supp.

103 (N.D.11.1969), aff'd, 396 U.S. 114, 90 S.Ct. 397, 24

L.Ed.2d 307 (1969); Caroor v. Blair, 358 F.Supp. 815

(N.D.111.1973), aff'd, 414 U.S. 990, 94 S.Ct. 345, 38 L.Ed.2d

231 (1973). The public guardian points out, however, that

none of these decisions addressed the due process rights of

the mentally ill in the context of tax sale cases. This issue

was, however, considered by the United States Supreme

Court in Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct.

724, 100 L.Ed. 1021 (1956).

65a

In Covey, the Japreme Court applied the principles of

Mullane to a municipal tax lien sale where the delinquent

taxpayer had no guardian and was known by town officials

“to be a person without mental capacity to handle her affairs

or to understand the meaning of any notice served upon her.”

Covey, 351 U.S. at 146, 76 S.Ct. at 727, 100 L.Ed. at 1026.

Although the town officials had complied with the notice

procedures found in the governing statute, the Court held

that, given the taxpayer’s mental incapacity, due process had

not been afforded. Citing to Mullane’s “reasonably

calculated” standard, the Court stated that “[nJotice to a

person known to be an incompetent who is without the

protection of a guardian does not measure up to [the

requirement of due process].” Covey, 351 U.S. at 146, 76

S.Ct. at 727, 100 L.Ed. at 1026. Because the taxpayer “was

wholly unable to understand the nature of the proceedings

against her property” and because “the town authorities knew

her to be an unprotected incompetent,” the Court held that

due process requirements had not been met. Covey, 351 U.S.

at 147, 76 S.Ct. at 727, 100 L.Ed. at 1026. See also /n re

Application of the County Collector for Judgment & Order

Sale Against Lands & Lots Returned Delinquent for

Nonpayment of General Taxes for the Year 1982 & Prior

Years, 188 Ill.App.3d 1068, 136 Ill.Dec. 621, 545 N.E.2d

145 (1989) (applying Covey ).

Although Covey involved a_ situation where the

government had actual knowledge of the delinquent

taxpayer's mental incapacity, the public guardian argues that

the case may also be read as applying to those situations

where the party charged with providing notice should have

known of the taxpayer’s incapacity. Applying this reading of

Covey to the case at bar, the public guardian argues that Mary

Lowe's due process rights were violated because Apex

should have known of Lowe’s mental illness. The public

guardian reasons that, if Apex had been more diligent in

66a

conducting its search for Mary Lowe, it would have noticed

the notations on the envelopes that were returned by the post

office and filed by the sheriff in the circuit court. If Apex had

noticed the notations, according to the public guardian, it

would have known of Lowe’s hospitalization, and would

have known that the initials and numbers on the envelope

belonged to a postal carrier. With this knowledge, Apex

could have contacted the post office and learned that Lowe

was in a mental hospital. And, once Apex knew that Lowe

was in a mental hospital, it would have known that she was

suffering from a mental disability. Thus, according to the

public guardian, Apex should have known of Lowe’s mental

illness and, under Covey, due process was not satisfied. '

The circuit court below rejected the argument that Covey

controlled here. The court held that even if Apex should have

known that Lowe was hospitalized, this did not mean that

Apex should have known of Lowe’s mental illness. As the

court explained, there are many reasons for which an

individual may be hospitalized that have nothing to do with

mental illness. We do not disagree with the circuit court’s

reasoning. However, we conclude that there is a more

fundamental difficulty with the public guardian’s argument,

namely, the fact that the argument rests on the assertion that

Apex did not conduct a diligent inquiry into ascertaining

Mary Lowe’s whereabouts.

“ The public guardian’s argument is directed toward Apex and its

purported failure to take adequate steps to noufy Mary Lowe. Apex is a

private party. Nevertheless, Apex does not dispute that it made “use of

state procedures with the overt, significant assistance of state officials”

(Tulsa Professional Collection Services, Inc v. Pape, 485 U.S. 478, 486,

99 L.Ed. 2D 565, 576, 108 S. Ct. 1340, 1345 (1988). so that sufficient

state action exists here to invoke the protections of due process. See also

F. Alexander. Zax Liens, Tav Sales and Due Process, 75 Ind. L. J. 747.

764 n. 102 (2000).

67a

Section 22-15 of the Property Tax Code (35 ILCS

200/22-15 (West 1994)) requires the tax purchaser to make a

“diligent inquiry” to locate the property owner and interested

parties when attempting to serve the section 22-10 take

notice. This “diligent inquiry” is also a_ constitutional

requirement. See Mennonite, 462 U.S. at 798 n. 4, 103 S.Ct.

at 2711 n. 4, 77 L.Ed.2d at 187 n. 4 (due process requires that

“reasonably diligent efforts” be made to locate the party to

whom notice is being served); Tu/sa, 485 U.S. at 490, 108

S.Ct. at 1347, 99 L.Ed.2d at 578 (same). In this case, when

the circuit court entered the tax deed order in May of 1996, it

held that Apex had made a diligent inquiry to locate Mary

Lowe, thereby satisfying statutory and _ constitutional

requirements.

In arguing that Covey controls here, the public guardian is

attempting to relitigate the circuit court’s diligent inquiry

finding. The public guardian’s contention is that Apex was

not diligent in searching for Mary Lowe, and that if it had

been, it would have learned that Lowe was hospitalized and

suffering from mental illness. However, the circuit court’s

diligent-inquiry finding may not be challenged in a section 2-

1401 petition, other than for the reasons given in section 22-

45 of the Property Tax Code (35 ILCS 200/22-45 (West

1994)). And, as previously discussed, we have concluded that

the only ground under section 22-45 that is relevant here, /.e.,

fraud or deception (see 35 ILCS 200/22-45(3) (West 1994)),

has not been proven.

To hold in this case that the public guardian may reopen

the circuit court’s diligent-inquiry finding would run counter

to the principles of finality for tax deed orders that have

existed, and been approved by this court, since at least 1958.

See Southmoor Bank & Trust Co. v. Willis, 15 Hb2d 388,

396, 155 N.E.2d 308 (1958) (unless a lack of jurisdiction

affirmatively appears on the record, the prior findings of the

68a

court of compliance with all the provisions of law entitling

the tax purchaser to a tax deed cannot be disputed in a

collateral proceeding). We decline to so hold. Accordingly,

we do not further consider the public guardian’s argument

that the present case falls under Covey because Apex failed

to conduct a diligent inquiry to locate Mary Lowe.

The public guardian raises an additional constitutional

argument that does not require reexamination of the circuit

court’s diligent inquiry finding. The public guardian

contends that the Property Tax Code is unconstiutional as

applied to all individuals, such as Mary Lowe, who are

hospitalized with a disabling mental illness during the section

22-10 notice period, regardless of whether the tax purchaser

has knowledge of the mental illness. According to the public

guardian, the notice procedures for the section 22-10 take

notice are unconstitutional because, even if the notice is

actually received by the mentally disabled person, it will not

be effective, i.e., the person will not be able to understand or

act upon it. As the public guardian states, “even if [Mary

Lowe] had been served the notice [it] would have been

meaningless to her due to her cognitive impairments.”

This is not the proper test for assessing the

constitutionality of a notice procedure. In determining

whether a notice procedure is constitutional, the question is

not whether the procedure actually succeeds in notifying the

individual but, rather, whether the procedure is reasonably

calculated to do so. As the United States Supreme Court has

stated, “[The Mullane standard} does not say that the State

must provide actual notice, but that it must attempt to provide

actual notice.” (Emphases in original.) Dusenhery v. United

States, 534 U.S. 161, 170, 122 S.Ct. 694, 701, 151 L.Ed.2d

597, 606 (2002). See also Karkoukli’s, Inc. v. Dohany, 409

F.3d 279, 284 (6th Cir.2005); Baker v. Latham Sparrowbush

Associates, 72 F.3d 246 (2d Cir.1995); 16B Am.Jur.2d

69a

Constitutional Law § 937 (1998) (“If a party employs a

procedure reasonably calculated to achieve notice, a

successful achievement is not necessary to satisfy due

process requirements”). This point--that a notice procedure

need not actually succeed in providing notice to satisfy due

process concerns--was noted in Mullane:

“This Court has not hesitated to approve of resort

to publication as a customary substitute in another

class of cases where it is not reasonably possible or

practicable to give more adequate warning. Thus it

has been recognized that, in the case of persons

missing or unknown, employment of an indirect and

even a probably futile means of notification is all that

the situation permits and creates no constitutional bar

to a final decree foreclosing their rights.” Mullane,

339 U.S. at 317, 70 S.Ct. at 658, 94 L.Ed. at 875.

Moreover, contrary to the public guardian’s argument,

whether the tax purchaser has knowledge of the delinquent

taxpayer’s mental illness is a factor that cannot be excluded

from the due process analysis. Mullane holds that “all the

circumstances” (Mullane, 339 U.S. at 314, 70 S.Ct. at 657,

94 L.Ed. at 873) of a case must be considered in analyzing

the reasonableness of any notice procedure. See also

Mennonite, 462 U.S. at 799, 103 S.Ct. at 2712, 77 L.Ed.2d at

188 (describing Covey’s holding that the state must make

additional efforts to provide notice to a mentally incompetent

individual as resting on the fact that the state was “aware of

[the] party’s” incompetence).

In addition, the Supreme Court has expressly held that

the notifying party’s knowledge of the location and status of

the person to be notified conditions the level of notice that

must be provided. See Mennonite, 462 U.S. at 800, 103 S.Ct.

at 2712, 77 L.Ed.2d at 188 (“[n]Jotice by mail or other means

as certain to ensure actual notice’ is required only if the

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party’s whereabouts are “reasonably ascertainable”); Tu/sa,

485 U.S. at 490-91, 108 S.Ct. at 1347-48, 99 L.Ed.2d at 578-

79 (an executor of an estate must provide notice by mail or

other means as certain to ensure actual notice to a creditor,

but only if the creditor’s “identity as a creditor was known or

reasonably ascertainable,” otherwise, publication notice can

suffice).

In light of the foregoing, we conclude that, in considering

the constitutionality of the notice procedures set forth in

sections 22-10 through 22-25 of the Property Tax Code as

applied to those who are hospitalized for mental illness, the

relevant question is not whether those procedures ultimately

succeed in providing actual notice. Rather, the relevant

question is whether the procedures require the tax purchaser

to make “reasonably diligent efforts” (Mennonite, 462 U.S. at

798 n. 4, 103 S.Ct. at 2711 n. 4, 77 L.Ed.2d at 187 n. 4;

Tulsa, 485 U.S. at 490, 108 S.Ct. at 1347, 99 L.Ed.2d at 578)

to locate and identify the hospitalized individual as a

mentally disabled person entitled to the protections discussed

in Covey.

The Property Tax Code does not include procedures that

are addressed specifically to those individuals who are

hospitalized for mental illness. Nothing in the Property Tax

Code, for example, requires tax purchasers to contact mental-

health facilities or other hospitals and ask whether the

delinquent taxpayer is a patient. Such a procedure would

correct the problem that is present in this case. If the hospital

told the tax purchaser that the taxpayer was, in fact, a patient

and had been admitted with a mental illness, the tax

purchaser would be on notice of the taxpayer's incompetence

and Covey would apply.

However, such a procedure would also be illegal under

Illinois law. Section 3/a) of the Mental Health and

Developmental Disabilities Confidentiality Act (740 ILCS

71a

110/3(a) (West 2000)) states: “(a) All records and

communications shall be confidential and shall not be

disclosed except as provided in this Act.” “CCommunications”

include “information which indicates that a person is a

recipient [of mental-health services}.” 740 ILCS 110/2 (West

2000)). Any person who knowing!’ and willfully discloses

confidential communications is guilty of a Class A

misdemeanor. 740 ILCS 110/16 (West 2000). Nothing in the

Mental Health and Developmental Disabilities

Confidentiality Act permits hospitals to disclose the fact that

an individual is a recipient of mental-health services to tax

purchasers.”

The public guardian does not suggest that the privacy

protections afforded the mentally ill in the Mental Health and

Developmental Disabilities Confidentiality Act are

unconstitutional or that they can in any way be altered by this

court. Nor has the public guardian identified any other

procedure, in addition to the diligent inquiry requirement

already found in the Property Tax Code, which would enable

the tax purchaser to learn that the delinquent taxpayer is

hospitalized and suffering from mental illness. Thus, the

notice procedures in the Property Tax Code embody all that

can be done under existing law to locate and identify a

delinquent taxpayer who is hospitalized for mental illness.

The public guardian cites to three decisions from other

jurisdictions in support of its argument the Property Tax

Code is unconstitutional as applied to those who are

hospitalized for mental illness. See /n re Consolidated Return

of the Tax Claim Bureau, 75 Pa.Cmwlth. 108, 461 A.2d 1329

(Pa.Commw.1983); Blum vy. Stone, 127 A.D.2d 549, 511

* In the case at bar, Mary Lowe's medical records were obtained only

after the circuit court issued a subpoena.

72a

N.Y.S.2d 638 (1987); Vance v. Federal National Mortgage

Ass'n, 988 P.2d 1275 (Okla.1999). The appellate court

distinguished these cases on their facts. To the extent that

they are not factually distinguishable, and support the public

guardian’s position in this case, we conclude that these

decisions are not persuasive. The decisions commit the same

error that the public guardian does, i.e., they conclude that

due process requires actual notification, rather than

reasonable notice procedures. Further, none of these cases

address the privacy rights of the mentally ill nor do they

identify what procedures could be put into place to correct

the problem of notifying individuals who are hospitalized

with mental illness.

“The most important criterion in the area of procedural

due process is ‘reasonableness.’ “Rosewell, 99 Ill.2d at 412,

76 Ill.Dec. 831, 459 N.E.2d 966. Because the notice

procedures involving the section 22-10 take notice

encompass all that can be done to locate and identify the

hospitalized, mentally ill taxpayer, by definition, those

procedures are reasonable. Accordingly, we hold that, as

applied to those taxpayers who are hospitalized for mental

illness, sections 22-10 through 22-25 of the Property Tax

Code mect the requirements of due process.

Finally, we note that the circuit court below, in issuing its

ruling, discussed the privacy implications of this case in

some detail. The court noted that it is the public policy of

Illinois to protect the privacy rights of the mentally ill but

that such protection can, as in this case, have unintended

consequences that actually work against the interests of the

mentally ill. The court went on to suggest that. when a

patient is hospitalized for mental illness and no family

member or guardian is available. the legislature might

consider allowing the hospital to notify the county collector,

under seal, of the patient’s situation, so that any time periods

73a

relating to the payment of taxes could be tolled. We express

no opinion on the wisdom of this suggestion. However, we

join in the circuit court’s conclusion that the issues raised in

this case merit legislative attention.

CONCLUSION

For the foregoing reasons, the judgment of the appellate

court is affirmed.

Affirmed.

Justice KARMEIER took no part in the consideration or

decision of this case.

74a

Appendix D

In The Appellate Court Of Illinois First Judicial District

IN THE MATTER OF THE APPLICATION OF THE

COUNTY COLLECTOR FOR JUDGMENT AND SALE

AGAINST LANDS AND LOTS RETURNED

DELINQUENT FOR NONPAYMENT OF GENERAL

TAXES AND/OR SPECIAL ASSESSMENTS FOR THE

YEARS 1991 AND PRIOR YEARS, (PETITION OF APEX

TAX INVESTMENTS, INC., Petitioner-Appellee, and

JOHN HERNDON, Subsequent Transferee and Claimed

Beneficial-Interest Holder, Appellee, v. MARY LOWE,

deceased, by Patrick T. Murphy, Cook County Public

Guardian and Supervised Administrator of the Estate of Mary

Lowe, Respondent-Appellant).

No. 95 CoTD 3812

Sept. 12, 2003

ORDER

The Cook County Public Guardian, on behalf of Mary

Lowe’s estate, appeals the trial court’s order denying its

petition to set aside the tax deed issued to Apex Tax

Investments, Inc. (“Apex”).' On appeal, the Public Guardian

contends that Apex did not provide Lowe, a mentally

incompetent individual, with adequate notice of the tax deed

proceedings. The Public Guardian also contends that Apex

knew or should have known that Lowe was mentally

' The tax purchaser’s name appears in various forms throughout the

record including: Apex Tax Investments, Inc.: Apex Tax Investments,

Lid.; Apex Tax Investment; and Apex Properties. The subsequent

transferee is John Hermdon. For purposes of brevity, we refer to the

parties collectively as “Apex” in this order

75a

incompetent and was obligated to appoint a guardian to Lowe

to effectively provide her with notice. The Public Guardian’s

final contention on appeal is that Apex’s representation that it

made a diligent inquiry to determine Lowe’s whereabouts

constituted fraud pursuant to section 22-45 of the Illinois

Property Tax Code. For the reasons to follow, we affirm.

Lowe began experiencing psychiatric problems in the

early 1960s. Lowe was hospitalized for approximately 16

months from August 25, 1995 to December 16, 1996, when

she was released to the care of her son, Bruce Lowe. Lowe

died on November 15, 1998.

In 1977, Lowe purchased the property, a single-family,

split-level townhouse. Lowe conveyed the property in 1993

through a quitclaim deed to herself and her companion,

William Austin, as joint tenants. Austin died in 1994 and

Lowe became the sole owner of the property by rights of

survivorship.

On March 3, 1993, Apex purchased the property at a tax

sale for $347.61, which was the amount of the 1991 property-

tax delinquency and fees. Apex filed a petition for the

issuance of a tax deed with the circuit court on October 5,

1995. Lowe’s right to redeem the property from the tax sale

was to expire on February 21, 1996. On March 6, 1996,

Apex filed an application for an order directing the 1ssuance

of a tax deed. Along with its application, Apex submitted the

affidavit of its authorized agent Fred Berke. Berke, among

other assertions, stated that “no person interested in said real

estate is believed to be a minor or is known to have been

adjudicated incompetent.”

On March 18, 1996, a hearing was conducted relating to

Apex’s application for a tax deed. Apex’s attorney, Jonathan

76a

Smith, informed the tral court that the redemption period

expired and there was no redemption of the property.

At the hearing, Smith also informed the court regarding

the parties that were served, the manner they were served and

the date they were served. The Cook County Sheriff

personally served the following individuals with notice of the

tax-deed proceedings: (1) the Cook County Clerk; (2) Starks

& Boyd, P.C., the law firm that prepared the 1993 quitclaim

deed to the property; and (3) First National Bank of Chicago,

a mortgagee of the property. The sheriff also attempted to

serve Austin, Lowe and “occupant” with notice on

October 26, 1995. The sheriff filed returns of service relating

to these individuals on November 9, 1995. On the returns of

service, the process server noted that the “house is vacant per

neighbors” and checked the line next to “MOVED”

indicating the reason for the failure to serve the notice.

The sheriff also sent notice addressed to Austin, Lowe

and “occupant” directly te the property by certified mail,

return receipt requested. Each of these notices is postmarked

November 8, 1995 and is stamped “returned to sender.” The

word “deceased”” was written on the envelope addressed to

Austin. The sheriff filed this returned notice with the court

on November 22, 1995. The envelopes containing the

notices to Lowe and “occupant” bear a stamp indicating

unsuccessful attempts to deliver the notices were made on

November 16, December1! and December18, 1995.

Printed on each envelope was “person is hospitalized.” The

sheriff filed the returned notices with the court on January 2,

1996.

The Clerk of the Circuit Court of Cook County also sent

notices to Austin, Lowe, “occupant,” Starks & Boyd, P.C.,

and First National Bank of Chicago by U.S. mail on

November 8, 1995. The U.S. Postal Service returned the

77a

notices addressed to Austin, Lowe and “occupant” to the

Circuit Clerk after it made unsuccessful attempts to deliver

the notices on November 9, November 15, and November 24,

1995. The Circuit Clerk filed the returned notices addressed

to Lowe and “occupant” with the court on November 29,

1995, and returned the notice addressed to Austin on

November 30, 1995.

Apex also provided publication notice in The Chicago

Daily Law Bulletin on October 11, October 12, and

October 13, 1995.

Fred Berke, Apex’s agent, testified on behalf of Apex at

the hearing. Berke testified that he visited the property,

received no response after knocking on the door, looked into

the living room window and did not see any furniture, and

was told by a neighbor that Lowe owned the home but no

one currently lived there.

Smith, Apex’s counsel, also informed the court at the

hearing that Apex was “unable to develop any address for

William Austin or Mary Lowe other than the subject property

address.” Smith stated that Lowe’s voter registration card

was reviewed in an effort to locate Lowe, city and suburban

phone directories were checked and notice was served on

Starks & Boyd, P.C. Smith also stated that “all regular

efforts proved fruitless” in response to the trial court’s

inquiry regarding the efforts undertaken by Apex to locate

Austin and Lowe. The trial court found that Apex exercised

due diligence in identifying the identity of interested parties

and the location of partics entitled to notice.

The trial court entered an order on May 20, 1996,

directing the County Clerk to issue a deed vesting Apex with

title to the property. The County Clerk issued a tax deed on

the same day.

78a

On September 5, 1997, Mario and Bruce Lowe, Mary’s

sons, filed a pro se petition asking that their mother be

restored to ownership of the property. In the petition, Bruce

Lowe alleged that his mother was a resident of the Tinley

Park Mental Health Center (“TPMHC”) from August 26,

1995 to December 1996. The trial court appointed the Cook

County Public Guardian as Lowe’s attorney and guardian ad

litem.

The Public Guardian filed a petition on November 10,

1997, to set aside the tax deed issued to Apex based on

section 2-1401 of the Code of Civil Procedure and

section 22-45 of the Illinois Property Tax Code. 735 ILCS

5/2-1401 (West 1992); 35 ILCS 200/22-45 (West 1996). On

April 17, 1998, the Public Guardian filed an amended

petition asking the court to set aside the tax deed issued to

Apex on the basis that Lowe did not receive notice of the tax

deed proceedings and that Apex’s efforts to locate Lowe to

serve her with notice failed to comport with due process and

the statutory notice provisions. The Public Guardian argued

that Apex failed to make a diligent inquiry of Lowe’s

whereabouts after receiving notice of her hospitalization.

The Public Guardian further argued that due to Lowe’s

mental state, even if Lowe received actual notice, the notice

did not satisfy due process requirements.

John Herndon entered into a contract with Apex on

December 6, 1996, to purchase the property. Attorney

Richard Glickman filed his appearance on behalf of Herndon

on August 12, 1998. Herndon also filed a motion to dismiss

the Public Guardian’s amended petition to set aside the tax

deed claiming he is a bona fide purchaser of the property as a

result of the purchase contract with Apex.

The Public Guardian filed a motion for summary

judgment on April 14, 1999, asking the court to find that

79a

Herndon was not a bona fide purchaser. The trial court

granted the Public Guardian’s motion for summary judgment

on June 8, 1999. The court found no genuine issue of

material fact regarding Herndon being a bona fide purchaser

because Herndon was aware of Lowe’s claim to the property.

On September 17, 1999, the Public Guardian filed a

motion for summary judgment on the basis that Apex did not

comply with the Illinois Property Tax Code and US.

Constitutional requirements and requested that the court set

aside the tax deed. The court denied the motion. In March

2000, Apex and Herndon filed answers to the amended

petition to set aside the tax deed.

On September 6, 2000, in response to the information

that Lowe died, the trial court entered an order dismissing

with prejudice the amended petition to set aside the tax deed.

The probate court entered an order appointing the Public

Guardian as administrator to collect for Lowe’s Estate. The

trial court then granted the Public Guardian’s motion to

vacate the trial court’s September 6, 2000, order and to

substitute the Public Guardian, now serving as administrator

to collect for Lowe’s Estate, as the proper party to prosecute

the amended petition.

On February 20, 2002, the trial court held an evidentiary

hearing relating to the amended petition to set aside the tax

deed. The trial court permitted Herndon to participate in the

hearing because he was a subsequent purchaser of the

property.

At the evidentiary hearing, the Public Guardian called

Dr. Bernard Rubin, a psychiatrist and psychoanalyst, to

testify. Rubin, an expert in the field of psychiatry, testified

that in his opinion Lowe suffered from a disorganized,

chronic schizophrenic disorder, the most severe form of

80a

schizophrenia. Rubin also testified that based primarily on

his review of the medical records, he believed that from

January 1995 until October 1996, Lowe suffered from a

mental illness. Rubin further testified that “my

understanding is that she would have no understanding of or

could not respond to any legal papers as well as any sort of

personal or social issues in her life [between January of 1995

and October of 1996].”

The Public Guardian also called Jewel Hightower, a

postal employee, to testify. Hightower testified that she was

aware of Lowe’s mental condition from her own observations

and from observations told to her by neighbors. Hightower

also testified that she received letters for delivery addressed

to Austin, Lowe and “occupant” that appeared to contain “tax

statements” or “tax bills.” Hightower stated that she knew

Austin died, and therefore wrote “deceased” on the envelope.

Hightower further stated that she attempted to deliver the

letters addressed to Lowe and “occupant” on three separate

occasions. After the last attempt, Hightower indicated that

she marked on the letters “person is hospitalized” and

returned the letters to the sender. Hightower stated that she

knew Lowe was hospitalized at TPMHC but postal

regulations prohibited her from indicating Lowe’s exact

location on the envelope. Hightower also stated that she was

not contacted regarding the letters with the notation “person

is hospitalized” even though her initials and route number

were included on the envelope. Hightower continued that

she informed the post office of Lowe's location by writing

her hospitalization down on a card kept at the post office.

Hightower further stated that she did not receive a

forwarding request for Lowe's mail.

Lowe was admitted to TPMHC on August 26, 1995. The

trial court at the evidentiary hearing admitted Lowe's mental

health records from TPMHC as a Public Guardian exhibit

8la

Lowe’s social worker at TPMHC, Dean Conrad, maintained

notes relating to Lowe’s medical condition. In a note dated

February 2, 1996, Conrad wrote that Lowe continued to

express grandiose delusional thinking and that she was

“unable to realistically address any subject without

interjecting delusional thinking.” In Conrad’s April 12th

note, he wrote that Lowe was “unable to carry on a focused,

coherent conversation for a 5 min. period of time.”

The trial court denied the amended petition to set aside

the tax deed on April 9, 2002. The court held that Apex did

not procure its tax deed through fraud or deception since the

returned certified letters were not filed with the court until

January 2, 1996. The trial court also held that although Apex

knew Lowe was hospitalized, Apex was not put on notice

that she was hospitalized for psychiatric reasons and

therefore, had no reason to believe that Lowe was

incompetent. The Public Guardian timely appealed the trial

court’s judgment on April 18, 2002, and’ filed an amended

notice of appeal on May 8, 2002.

On appeal, the Public Guardian first argues that given

Lowe’s mental incompetency, Apex did not provide adequate

notice of the tax deed proceedings as required by the Illinois

Property Tax Code and due process. Individuals cannot be

deprived of their property by the government without due

process of the law. Mullane v. Central Hanover Bank &

Trust Co., et al, 339 U.S. 306, 315, 70 S. Ct. 652, 657

(1950). Due process requires providing notice to a party that

is reasonably calculated to inform the party of the pendency

of the action and provide an opportunity to present

objections. Mullane, 339 U.S. at 315, 70 S. Ct. at 657. With

respect to the notice. “when notice is a person's due, process

which is a mere gesture 1s not due process. The means

employed must be such as one desirous of actually informing

the absentee might reasonably adopt to accomplish it. The

82a

reasonableness and hence the constitutional validity of any

chosen method may be defended on the ground that it is in

itself reasonably certain to inform those affected.” Mullane,

339 U.S. at 315, 70 S. Ct. at 657. Due process is evaluated

on the basis of reasonableness. /n re Application of County

Collector, 188 Ill.App.3d 1068, 1075, 545 N.E.2d 145, 149

(1989) (National Indemnity Corp. v. Otsus),. Reasonableness

does not require “burdensome or elaborate efforts to notify

interested parties.” Ofsus, 188 IllL.App.3d at 1075, 545

N.E.2d at 149, citing Rosewell v. Chicago Title and Trust, 99

{11.2d 407, 459 N.E.2d 966 (1984).

A trial court’s finding of historical facts are reviewed on

a manifest weight of the evidence standard and constitutional

based claims are reviewed on a de novo standard. See People

v. Crane, 195 Ull.2d 42, 51-52, 743 N.E.2d 555, 562 (2001).

In support of its position that Apex did not provide

adequate notice, the Public Guardian relies on Covey v. Town

of Somers, 351 U.S. 141, 76 S. Ct. 724 (1956) and /n re

Application of County Collector, 188 Ill.App.3d 1068, 545

N.E.2d 145 (1989) (National Indemnity Corp. v. Otsus).

These cases, however, are distinguishable from the instant

case.

Covey was a tax-lien foreclosure case involving a

mentally incompetent property owner. Covey, 351 U.S. at

144, 76 S. Ct. at 726. The court found that the tax purchaser

properly complied with the — statutory _ notification

requirements, but knew that the property owner was mentally

incompetent when it gave the notice. Covey, 351 U.S. at 147,

76 S. Ct. at 727. Holding that the property owner's due

process rights were violated, the court stated in part that

“Notice to a person known to be incompetent who is without

the protection of a guardian does not measure up to th[e]

requirement(s of due process]. Covey, 351 U.S. at 146, 76

83a

S. Ct. at 727. That case is distinguishable from the present

case because the trial court found that Apex did not know

that Lowe was mentally incompetent when it provided notice

to Lowe. We see no basis in the record to disturb that

finding.

Otsus also addressed the sufficiency of notice given to an

unprotected mentally incompetent individual in a tax-deed

proceeding. Ofsus, 188 Ill.App.3d at 1077, 545 N.E.2d at

150. Notice of the impending proceedings was given to the

property owner Otsus, the Village of Evergreen Park, which

is the municipality the property is located in, and PLOWS

Council on Aging. Ofsus, 188 Ill.App.3d at 1070, 545

N.E.2d at 146. In reaching its decision, the Otsus court

applied the holding of Covey. The court held that National

had knowledge of Otsus’ diminished capacity and_ that

National knew or should have known that the notice given to

Otsus would be inadequate to inform Otsus that she could

lose her property. Oftsus, 188 Ull.App.3d at 1077, 545 N.E.2d

at 150.

The Public Guardian contends that the Otsus court did

not find that National knew, or should have known, that

Otsus was incompetent but that the notice to Otsus would be

inadequate due to her diminished capacity. The Public

Guardian further contends that ambiguity existed regarding

National’s knowledge of Otsus’ mental condition and it is

uncertain what role that played in the court’s decision. The

Public Guardian argues that Otsus should not be read as

holding that notice to an incompetent homeowner ts effective

provided the party giving the notice is unaware that the

homeowner Is incompetent.

We interpret Otsus differently. We note that the court

explicitly stated that “we can reasonably conclude that both

National and the Village knew of Mrs. Otsus’ diminished

84a

capacity” and that “National knew or should have known that

such notice was inadequate to inform Mrs. Otsus that her

interest in her property was at risk.” Otsus, 188 IlL.App.3d at

1077, 545 N.E.2d at 150. Ofsus holds that a party cannot

provide constitutionally adequate, meaningful notice to a

party knowing that the party cannot comprehend the given

notice.

Unlike the tax purchaser in Ofsus, there was no indication

in the present case that when Apex attempted to provide the

notice, it knew that Lowe would not adequately understand

the notice. After Apex’s repeated attempts to personally

serve Lowe proved unsuccessful, Apex provided Lowe with

notice by publishing it in the Chicago Daily Law Bulletin.

Apex’s agent, Fred Berke, also personally visited Lowe’s last

known address and testified that he was told by a neighbor

that no one was currently living in the house. We note that

Fred Berke was not told by the neighbor that Lowe was

mentally incompetent or was institutionalized. Also, the

notation on the envelope by the postal worker did not

indicate that the person was hospitalized at a mental health

center. Here, the record supports the conclusion that Apex

did not know of Lowe’s mental incapacity and that Apex

provided adequate notice regarding the impending tax deed

proceedings.

The Public Guardian also raises three cases in its brief

from other jurisdictions to support its position that notice to

an unprotected mental incompetent does not satisfy the due

process guarantee of our constitution. We do not, however,

find these decisions controlling and applicable to the instant

case.

The Public Guardian first raises /n re Consolidated

Return of the Tax Claim Bureau of the County of Delaware,

461 A.2d 1329 (Pa. Commw. Ct. 1983) (Appeal of Givder

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Realty Corp.). The court in that case invalidated a tax sale

holding that notice to a person found to be incompetent at the

time statutory notice is given and who cannot comprehend

the notice does not satisfy constitutional due process

requirements. Appeal of Glyder Realty Corp., 461 A.2d at

1332.

The Public Guardian next raises Blum v. Stone, 127

A.D.2d 549 (1987). The court held that the 93 year old

property owner whose mental condition was deteriorating

was not required to prove that the party providing notice had

actual or constructive knowledge of her incompetency.

Blum, 127 A.D.2d at 553, 511 N.Y.S.2d at 641. The court

held that reputation evidence was sufficient evidence

concerning the owner’s lack of mental capacity and to

establish the actual or constructive knowledge of her

diminished capacity by members of the community. Blum,

127 A.D.2d at 552-53, 511 N.Y.S.2d at 641-42.

The last case the Public Guardian raises is Vance v.

Federal National Mortgage Association, 988 P.2d 1275

(1999). In Vance, the court held that a mortgagor’s mental

status was a material issue of fact precluding summary

judgment. Vance, 988 P.2d at 128i. The court in that case

stated that the due process analysis regarding the sufficiency

of notice required an evaluation of the individual's capacity

to understand the service of process of the foreclosure

proceedings. Vance, 988 P.2d at 1281.

We are not convinced that these cases are controlling and

applicable to the case at bar in light of the Otsus case decided

by this court. The Ofsus decision does not discuss nor reter

to either the Appeal of Glvder Realty Corp. or Blum case,

both of which were decided prior to Otsus. _ bance was

decided subsequent to Otsus, but Vance is distinguishable

from the other cases because the court in bance focused

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primarily on the propriety of summary judgment when an

individual’s mental state was a material question of fact. The

court in Ofsus, Appeal of Glyder Realty Corp., and Blum

broadly addressed the sufficiency of notice given to a

mentally incompetent individual. We are persuaded by and

find controlling this court’s reasoning and decision in Otsus.

To reiterate, this court in Otsus invalidated a tax sale because

the tax purchaser knew or should have known that its notice

to the property owner was inadequate to inform the owner of

the impending loss of her property given her lack of mental

compentency. Ofsus, 188 Ill.App.3d at 1076, 545 N.E.2d at

150. For comparable reasons, we are also not persuaded by

the federal social security administration cases cited by the

Public Guardian. In the instant case, we conclude that Apex

provided adequate notice to Lowe, based upon its many and

varied attempts to serve her, and its lack of knowledge of her

diminished capacity.

The Public Guardian next argues on appeal that since

Apex knew or should have known that Lowe was mentally

incompetent, Apex should have sought the appointment of a

guardian to ensure Lowe received effective notice of the tax

deed proceedings. Due process requires providing notice

reasonably calculated to inform interested persons of the

proceedings and the opportunity to present objections.

Mullane, 339 U.S. at 314-15, 70 S. Ct. at 657. If an

individual’s name and address are reasonably ascertainable,

notice by mail or other means that ensures actual notice

satisfies due process requirements. Mennonite Board of

Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct. 2706, 2712

(1983). Mailing notice to an address known not to be the

current address is not reasonably calculated to inform

interested persons of the impending proceedings. Robinson

v. Hanrahan, 409 U.S. 38, 40,93 S. Ct. 30, 32 (1972).

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The Public Guardian contends that when Apex’s notices

were returned undelivered and bearing the notation “person is

hospitalized,” Apex had a duty to investigate Lowe’s

hospitalization. The Public Guardian also contends that this

investigation would have revealed that Lowe’ was

hospitalized at a mental health center. Therefore, the Public

Guardian argues that Apex must be charged with the

knowledge that

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