The Lawletter Vol 39 No 10
The provision of notice solely by publication of an impending legal proceeding affecting an individual's property rights has long been unpopular with the public and disfavored by the courts. To ameliorate the harshness of publication notices and to comply with the intended recipient's right of due process, state and federal courts generally require the party charged with giving notice to first take reasonable steps or make diligent efforts to locate the intended recipient's current address. The question then arises as to what type of investigation is legally required to fulfill the sending party's notice obligations. In this regard, some courts have recently been asked whether such investigatory obligations include the performance of an Internet search for the intended recipient's current address.
This question is clouded by the admonition of the U.S. Supreme Court in Jones v. Flowers, 547 U.S. 220 (2006), that a party charged with providing notice need not conduct an open-ended search to locate the intended recipient's current whereabouts. It is unclear whether an Internet search amounts to an open-ended search rejected by Jones.
Case law on this point is split. In requiring an Internet search, one state court opined: "In our contemporary, technologically connected society, a diligent individual would undoubtedly utilize the Internet—with its enormous reach and nearly instant results—to locate property owners and addresses." In re Application of Douglas County Treasurer, 2014 IL App. (4th) 130261, ¶ 45, 5 N.E.3d 214, 225, appeal denied, 8 N.E.3d 1047 (Ill. 2014) (table disposition). In contrast, other courts have ruled that an Internet investigation is the kind of open-ended search that the Jones Court expressly condemned as unnecessary. See, e.g., Foreclosure of Liens v. Holton, 428 S.W.3d 670 (Mo. Ct. App. 2014); MacNaughton v. Warren County, 982 N.E.2d 1237 (N.Y. 2012).
Given the increasing availability of ready access to the Internet in our society, it seems courts in the future are likely to require that parties charged with the responsibility of providing notice perform an Internet search for the intended recipient's current address. It would be prudent for counsel to reserve notice solely by publication only for those situations in which an Internet search and other investigatory methods fail to reveal the intended recipient's current whereabouts.