NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL
RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
VERNON L. CROWNOVER, Plaintiff/Appellant,
v.
GARLAND KEEL,
COUNTY TREASURER OF McINTOSH COUNTY and BOARD OF COUNTY COMMISSIONERS OF
McINTOSH COUNTY, Defendants/Appellees.
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION
III
¶0 Appellant landowner neglected to pay taxes on certain real property in
McIntosh County, Oklahoma. The property was sold at a tax sale and a tax deed
was issued to the buyer. The landowner filed suit seeking to invalidate the tax
deed and quiet title in himself, asserting that the sale and resultant deed were
void because he was not given constitutionally sufficient notice of the sale and
was denied his right to redeem the property. Both the landowner and the county
defendants moved for summary judgment. The trial court granted the county
defendants' motion and denied the landowners. The landowner appealed, and the
Court of Civil Appeals affirmed. We hold: 1) that the landowner did not receive
constitutionally sufficient notice; and 2) the sale and resultant tax deed are
therefore void.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND
CAUSE
REMANDED.
Michael P. Brogan, Oklahoma City, Oklahoma, for Plaintiff/Appellant Vernon L.
Crownover.
Carman D. Rainbolt, Checotah, Oklahoma, for Defendant/Appellee
Garland Keel.
Gregory R. Stidham, Assistant District Attorney for McIntosh
County, Eufaula, Oklahoma, for Defendants/Appellees County Treasurer of McIntosh
County and Board of County Commissioners of McIntosh County.
¶1 The question presented on appeal is whether an owner of real property
received constitutionally sufficient notice of the sale of his property for
delinquent taxes when notice was provided only by publication and certified mail
that was returned undelivered. We hold that he did not.
I.
FACTS AND PROCEDURAL HISTORY
¶2 At issue in this cause is the ownership of certain real property in
McIntosh County, Oklahoma. Plaintiff/Appellant Vernon L. Crownover (Crownover)
originally obtained title to this property by virtue of warranty deed recorded
in the McIntosh County Clerk's Office on May 18, 2001. The undisputed facts
indicate Crownover ceased paying taxes on this property after paying the 2005 ad
valorem taxes by check dated January 1, 2006.
¶3 After Crownover failed to pay taxes on the property for several years, the
property was offered by McIntosh County for sale during the 2010 resale,
pursuant to 68 O.S. 2011 §§ 3105
and 3125. It is undisputed that the notice provisions of 68 O.S. 2011 § 3106, mandating
notice by mail and publication, were complied with. Notice was sent by certified
mail to Crownover at the address he provided when he purchased the property in
McIntosh County, and was also published in a newspaper in McIntosh County.
Unbeknownst to county treasurer's office, Crownover no longer lived at the
address to which notice was sent.
¶4 Defendant/Appellee Garland Keel (Keel) purchased the property at the 2010
tax resale and received a resale tax deed. Keel contacted Crownover after
obtaining the resale tax deed to inquire about a boat and trailer Crownover had
left on the property. Apparently only at this point did Crownover become aware
that the property had been sold at the tax resale due to his failure to pay
delinquent taxes.1
¶5 Crownover filed suit against Defendants/Appellees County Treasurer of
McIntosh County and Board of County Commissioners of McIntosh County
(collectively, "County") in the District Court of McIntosh County on August 12,
2010, alleging he was the true owner of the subject property and seeking to
quiet title in himself. Crownover alleged that Keel's resale tax deed was void
because Crownover received no actual notice of the delinquent taxes or the tax
resale. Crownover argued that he did not receive notice because while the
notices of delinquent taxes and of the resale were sent to the address he
provided to McIntosh County when he purchased the property, Crownover no longer
lived at that address. Crownover asserted that the County should have sent
notice to the address listed on the last check he wrote for taxes on January 1,
2006. Crownover asserted that had notice been mailed to his correct address and
had he received it, he would have immediately paid taxes on the property and
would have redeemed it from the tax resale. Accordingly, he claimed he was
denied his right to redemption by the County's failure to provide him with
notice.
¶6 On June 4, 2013, Crownover moved for summary judgment, alleging that there
was no dispute as to the material facts and that he was denied due process
because he did not have actual notice of the delinquent taxes and 2010 tax
resale, and that the County's efforts were insufficient to provide him with that
notice. The County responded to Crownover's motion for summary judgment on
August 20, 2013, and also moved for summary judgment, alleging that it complied
with all statutory notice requirements by: 1) mailing notice by certified mail
to the address Crownover had originally provided; and 2) publishing notice of
the resale in a publication in McIntosh County. The County asserted the burden
was on Crownover to provide notice that his address had changed, and that it
should not have been required to assume that a single check with a different
address constituted that notice.2
¶7 In a response to County's motion for summary judgment filed on September
6, 2013, Crownover contended that the notice sent by the County to his old
address via certified mail was returned to the County treasurer marked "Not
Deliverable as Addressed Unable to Forward."3 In two separate orders filed on March
11, 2014, the trial court overruled Crownover's motion for summary judgment and
granted summary judgment in favor of the County.
¶8 Crownover appealed, filing his Petition in Error and Preliminary Statement
on April 7, 2014, in accordance with Oklahoma Supreme Court Rule 1.36, 12 O.S.
Supp. 2013, Ch. 15, App. 1, governing accelerated procedure for summary
judgments. This Court issued a show cause order on April 9, 2014, directing
Crownover to show cause why his appeal should not be dismissed for lack of an
appealable order because the trial court's order granting summary judgment for
the County did not dispose of Crownover's claims against Keel. Crownover
responded to the show cause order on April 23, 2014, and asserted that adequacy
of notice was the controlling issue in determining the validity of Keel's tax
deed. Because adequacy of notice to Crownover would determine the validity of
the tax deed issued to Keel, Crownover asserted the trial court's order denying
his motion for summary judgment was a final order disposing of his claims
against all parties, including Keel. This Court agreed, and allowed Crownover's
appeal to proceed.
¶9 In an unpublished opinion issued on December 5, 2014, the Court of Civil
Appeals , Division III, affirmed the decision of the trial court. The COCA
determined that the County completed all the statutory requirements to vest in
the County treasurer the authority to issue the tax deed, including mailing
notice to Crownover's address of record. The COCA also noted that pursuant to 68 O.S. 2011 § 3106, Crownover's
failure to receive this notice did not invalidate the sale.4 Further, the COCA stated that
although Crownover claimed the County Treasurer's records showed the envelope
sent to his previous address was marked "not deliverable as addressed unable to
forward," Crownover did not attach a copy of the envelope and therefore it was
not part of the record.
¶10 Crownover filed his Petition for Writ of Certiorari on December 26, 2014,
arguing that the COCA erred by incorrectly stating that Crownover failed to
attach a copy of the certified mail envelope marked "not deliverable as
addressed unable to forward." Crownover further asserts that under the
undisputed facts he was entitled to summary judgment as notice via certified
mail was insufficient to satisfy due process when the County was aware that he
did not receive that notice. He also argues that a simple inquiry on their part
would have allowed them to determine his current address and provide actual
notice, which they failed to do. This Court granted Crownover's Petition for
Certiorari on March 30, 2015, and the cause was assigned to this office on April
1, 2015.
II.
STANDARD OF REVIEW
¶11 A moving party is entitled to summary judgment as a matter of law only
when the pleadings, affidavits, depositions, admissions, or other evidentiary
materials establish that no genuine issue of material fact exists. Miller v.
David Grace, 2009 OK 49,
¶10, 212 P.3d 1223; Davis v.
Leitner, 1989 OK 146, ¶9, 782 P.2d 924. In reviewing the grant
or denial of summary judgment, this Court views all inferences and conclusions
to be drawn from the evidentiary materials in a light most favorable to the
nonmoving party. Trinity Baptist Church v. Brotherhood Mut. Ins. Services,
LLC, 2014 OK 106, ¶9, 341
P.3d 75; Miller, 2009 OK
49, ¶10; Wathor v. Mut. Ins. Adm'rs, 2004 OK 2, ¶4, 87 P.3d 559.
¶12 Because a grant of summary judgment is a purely legal issue, this Court's
standard of review on appeal is de novo. Trinity, 2014 OK 106, ¶9; Miller, 2009 OK 49, ¶10; Carmichael v.
Beller, 1996 OK 48, ¶2, 914 P.2d 1051. In conducting a de
novo review of a trial court's legal rulings, this Court possesses plenary,
independent, and non-deferential authority to examine the issues presented.
Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶10, 306 P.3d 544; Martin v. Aramark
Servs., Inc., 2004 OK 38,
¶4, 92 P.3d 96.
III.
NOTICE TO A PROPERTY OWNER VIA CERTIFIED MAIL
PRIOR TO
SALE OF THE PROPERTY FOR DELINQUENT TAXES
IS
INSUFFICIENT TO SATISFY THE REQUIREMENTS OF DUE
PROCESS
WHEN THAT NOTICE IS RETURNED UNDELIVERED.
¶13 The Oklahoma Statutes provide for the eventual sale of real property by
the county in which it is located if taxes remain unpaid for a long enough
period of time. The applicable statute authorizing the sale of real property for
delinquent taxes is 68 O.S. 2011§
3105, which provides in pertinent part:
A. The county treasurer shall in all cases, except those provided for in
subsection B of this section, where taxes are a lien upon real property and
have been unpaid for a period of three (3) years or more as of the date such
taxes first became due and payable, advertise and sell such real estate for
such taxes and all other delinquent taxes, special assessments and costs at
the tax resale provided for in Section 3125 of this title, which shall be
held on the second Monday of June each year in each county. The county
treasurer shall not be bound before so doing to proceed to collect by sale
all personal taxes on personal property which are by law made a lien on
realty, but shall include such personal tax with that due on the realty, and
shall sell the realty for all of the taxes and special
assessments.
A. Constitutionally adequate notice to an owner of real property is
required before that property can be sold for delinquent taxes.
¶14 While 68 O.S. 2011 § 3105
authorizes the sale of real property for delinquent taxes, the U.S. Const.
amend. XIV, § 1 and Okla. Const. Art. 2, § 7 ensure that no person may be
deprived of life, liberty, or property without due process of law.5 At a minimum,
due process requires notice and a meaningful opportunity to appear and be heard.
Edwards v. City of Sallisaw, 2014 OK 86, ¶19, 339 P.3d 870;
Daffin v. State ex rel. Okla. Dep't of Mines, 2011 OK 22, ¶16, 251 P.3d 741.
¶15 Accordingly, constitutionally sufficient notice must be given to real
property owners before the property is sold for failure to pay taxes. Jones
v. Flowers, 547 U.S. 220, 234, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)
("[B]efore forcing a citizen to satisfy his debt by forfeiting his property, due
process requires the government to provide adequate notice of the impending
taking."). See Southwestern Commercial Capital, Inc. v. Cornett Packing
Co., 2000 OK 19, ¶16, 997 P.2d 849; Luster v. Bank of
Chelsea, 1986 OK 74, ¶18, 730 P.2d 506.
¶16 Notice to the property owner prior to selling real property for
delinquent taxation is also required by statute, and the requirements are set
out in 68 O.S. 2011 § 3106, which
provides:
The county treasurer, according to the law, shall give notice of
delinquent taxes and special assessments by publication once a week for two
(2) consecutive weeks at any time after April 1, but prior to the end of
September following the year the taxes were first due and payable, in some
newspaper in the county to be designated by the county treasurer.
Such notice shall contain a notification that all lands on which the
taxes are delinquent and remain due and unpaid will be sold in accordance
with Section 3105 of this title, a list of the lands to be sold, the name or
names of the last record owner or owners as of the preceding December 31 or
later as reflected by the records in the office of the county assessor,
which records shall be updated based on real property conveyed after October
1 each year and the amount of taxes due and delinquent. If the sale involves
property upon which is located a manufactured home the notice shall contain
the following language: "The sale hereby advertised involves a manufactured
home which may be subject to the right of a secured party to repossess. A
holder of a perfected security interest in such manufactured home may be
able to pay ad valorem taxes based upon the value of the manufactured home
apart from the value of real property." In addition to said published
notice, the county treasurer shall give notice by mailing to the record
owner of said real property as of the preceding December 31 or later as
reflected by the records in the office of the county assessor, which records
shall be updated based on real property conveyed after October 1 each year,
a notice stating the amount of delinquent taxes owed and informing the owner
that the subject real property will be sold as provided for in Section 3105
of this title if the delinquent taxes are not paid and showing the legal
description of the property of the owner being sold. Failure to receive said
notice shall not invalidate said sale. The county treasurer shall charge and
collect in cash, cashier's check or money order, in addition to the taxes,
interest and penalty, the publication fees as provided by the provisions of
Section 121 of Title 28 of the Oklahoma Statutes, and Five Dollars ($5.00)
plus postage for mailing the notice, which shall be paid into the county
treasury or whatever fund the publication and mailing fee expenses came
from, and the county shall pay the cost of the publication of such notice.
But in no case shall the county be liable for more than the amount charged
to the delinquent lands for advertising and the cost of
mailing.
¶17 The parties do not dispute that the County satisfied the requirements of
68 O.S. 2011 § 3106 by publishing
notice in a newspaper in McIntosh county and sending notice by certified mail to
the address Crownover had originally provided. The County asserts that its
compliance with the statute was sufficient to satisfy the requirements of due
process, even if Crownover did not receive actual notice. The County points
specifically to the portion of 68
O.S. 2011 § 3106 which states: "[f]ailure to receive said notice shall not
invalidate said sale." Crownover asserts that mere compliance with the statute
was insufficient to satisfy due process where the County knew that Crownover did
not have actual notice, because the certified envelope was returned marked as
undeliverable as addressed and unable to forward.
¶18 This Court has long recognized that the statutory notice provisions for a
tax sale are mandatory, and the absence of such notice nullifies the sale of the
property. Garcia v. Ted Parks, L.L.C., 2008 OK 90, ¶13, 195 P.3d 1269; Smith v.
Bostaph, 1924 OK 937, ¶0, 229 P. 1039 (overruled on other
grounds by Wilson v. Levy et al., 1929 OK 457, 282 P. 679). However, compliance
with the notice provisions 68 O.S.
2011 § 3106 is not in and of itself sufficient if the notice provided is
constitutionally deficient:
when notice is a person's due, process which is a mere gesture is not due
process. The means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it. The
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 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70
S.Ct. 652, 94 L.Ed. 865 (1950).
B. Notice via certified mail does not satisfy the requirements of due
process when it is returned undelivered and other reasonable steps can be taken
to supply notice.
¶19 The notice requirement of due process is not satisfied where, as here,
notice sent via certified mail is returned undelivered and no further action is
taken. The decision of the United States Supreme Court in Jones v.
Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), is directly
on point concerning notice required to satisfy the requirements of due process
prior to sale of real property for delinquent taxation. In Jones, under
similar facts to this cause, the Supreme Court of the United States determined
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 225. The tax sale in Jones occurred after the State published
notice in a newspaper and attempted to notify the property owner--who no longer
lived on the property--by certified mail twice, with the notice returned
unclaimed both times. Jones, 547 U.S. at 223-224.
¶20 The Jones Court reaffirmed that the due process clause of the
United States Constitution does not require that a property owner receive actual
notice before the government may take his property. 547 U.S. at 226;
Dusenberry v. United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151
L.Ed.2d 597 (2002). However, the Court also noted that:
due process requires the government to provide "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."
..
In Mullane we stated that "when notice is a person's due ... [t]he
means employed must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it".
Jones, 547 U.S. at 226, 229 (quoting Mullane v. Central Bank &
Trust Co., 339 U.S. 306, 314-315, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
In Jones, much as in this cause, the State argued that it satisfied
the notice requirement of due process through the act of sending notice via
certified mail. The Court disagreed, holding:
We do 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. If the
Commissioner prepared a stack of letters to mail to delinquent taxpayers,
handed them to the postman, and then watched as the departing postman
accidentally dropped the letters down a storm drain, one would certainly
expect the Commissioner's office to prepare a new stack of letters and send
them again. No one "desirous of actually informing" the owners would simply
shrug his shoulders as the letters disappeared and say "I tried." Failure to
follow up would be unreasonable, despite the fact that the letters were
reasonably calculated to reach their intended recipients when delivered to
the postman.
Jones, 547 U.S. at 229 (emphasis added).
The Jones court also stated succinctly that the property owner's
failure to keep his address updated, which was required by statute, did not
result in the owner somehow forfeiting his right to constitutionally
sufficient notice. 547 U.S. at 229. Further, "the common knowledge that property
may become subject to government taking when taxes are not paid does not excuse
the government from complying with its constitutional obligation of notice
before taking private property." 547 U.S. at 232.
¶21 While the Jones Court determined that the State should have taken
other reasonable measures to reach the property owner, it stopped short of
requiring the state to search elsewhere for an address for the property owner,
noting that an open-ended search for a new address would unduly burden the
State. 547 U.S. at 236. Rather, the Court suggested reasonable measures such as
posting notice on the property door, or even sending notice by regular mail,
which could at least have resulted in its delivery and presence on the property.
Jones, 547 U.S. at 235. The Court noted that it was not its
responsibility to redraft the State's notice statute, but it was sufficient that
the Court was confident additional reasonable steps were available for Arkansas
to employ before taking the property. Jones, 547 U.S. at 238. The Court
concluded:
There is no reason to suppose that the State will ever be less than fully
zealous in its efforts to secure the tax revenue it needs. The same cannot
be said for the State's efforts to ensure that its citizens receive proper
notice before the State takes action against them. In this case, the State
is exerting extraordinary power against a property owner-taking and selling
a house he owns. It is not too much to insist that the State do a bit more
to attempt to let him know about it when the notice letter addressed to him
is returned unclaimed.
Jones, 547 U.S. at 239.
¶22 Federal jurisprudence is not the only indication that notice via
certified mail is insufficient to satisfy the requirements of due process before
a sale of real property for delinquent taxation when the government is aware
that the notice was not received by the property owner. Prior decisions of this
Court also firmly indicate that the County was required to do more under these
circumstances than simply shrug and claim it complied with the notice
statute.
¶23 As stated previously, this Court has long recognized that the statutory
notice provisions for a tax sale are mandatory, and the absence of such notice
nullifies the sale of the property. Garcia, 2008 OK 90, ¶13, 195 P.3d 1269. This Court has also
previously determined that notice by publication alone is insufficient to
satisfy the requirements of due process when the party entitled to notice is
readily identifiable. Garcia, 2008 OK 90, ¶13; Southwestern
Commercial Capital, Inc. v. Cornett Packing Co., 2000 OK 19, ¶16, 997 P.2d 849.
¶24 This cause is not the first time this Court has examined notice
requirements prior to the sale of real property for delinquent taxes through the
lens of constitutionally-required due process. In Luster v. Bank of
Chelsea, 1986 OK 74, ¶18, 730 P.2d 506, this Court held that a
tax resale deed was void where the county treasurer failed to provide the
statutorily-required6 notice to the true owner of the real property,
because the tax rolls erroneously showed another individual as the owner. Noting
that simple compliance with the notice requirements of the statute might not
satisfy due process, this Court stated:
[a]lthough the Lusters argue the trial court correctly found that all
matters pertaining to the tax certificates and the sale at the tax resale
were in compliance with the statutes, this is not determinative of this
appeal. It is the totality of the circumstances and conditions of each
individual case that determines if the constitutional requirements of due
process are satisfied. Walker v. City of Hutchinson, 352 U.S. 112, 115,
77 S.Ct. 200, 202, 1 L.Ed.2d 178 (1956); Mullane, 339 U.S. at 314, 70 S.Ct.
at 657. Due to no fault of Mrs. Thomas, the County Treasurer did not mail
written notice of either the original sale or the resale of the property to
her because the tax rolls erroneously reflected another person as record
owner. The publication advertising the resale similarly named Mr. Vaughn as
the owner rather than the Thomases. Concededly, the published notice of the
original sale listed Mr. Thomas as the owner.
Luster, 1986 OK 74, ¶17
(emphasis added).
¶25 In Wells Fargo Credit Corp. v. Ziegler, 1989 OK 113, ¶6, 780 P.2d 703, this Court determined
that the mere act of sending notice via certified mail, in the absence of a
return receipt, was insufficient to constitute actual notice.7 In Ziegler, the
holders of the tax deed argued, much as the County does here, that pursuant to
the statute sending notice via certified mail was sufficient regardless of
whether the mailed notice was received. This Court disagreed, holding:
[t]his is a too narrow construction. The statute requires the county
treasurer to exercise reasonable diligence in locating the mortgagee.
Furthermore, "prior to an action which will affect an interest in life,
liberty or property protected by the Due Process Clause of the Fourteenth
Amendment, a state must provide 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." Mennonite Bd.
of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d
180, 185 (1983) citing Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), "The notice must be
of such nature as reasonably to convey the required information . . . ."
Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873. The notice as
given in this case neither comports with the statutory mandate of reasonable
diligence in locating the mortgagee nor with the constitutional requirement
of due process. The absence of a return receipt was a red flag alerting the
County Treasurer to exercise reasonable diligence in locating Wells Fargo.
Yet, the County Treasurer went no further in its attempt to provide notice
in this case. The act of mailing, in and of itself, does not constitute
actual notice. "Notice by mail or other means as certain to ensure actual
notice is a minimum constitutional precondition to a proceeding which will
adversely affect the liberty or property interests of any party. . . ."
Mennonite Bd. of Missions, 103 S.Ct. at 2712. In the instant case, the act
of mailing without proof of receipt of notice falls short of the exercise of
reasonable diligence in assuring actual notice.
Ziegler, 1989 OK 113,
¶6.
¶26 More recently, this Court examined required notice in Garcia v. Ted
Parks, L.L.C., 2008 OK 90,
195 P.3d 1269. Under the facts
of that cause, where the record owner was living on the property and her
whereabouts were known, this Court determined that nothing less than actual
notice was sufficient to meet the requirements of due process prior to sale of
the property for delinquent taxation. This Court declared:
[c]learly, to the extent that the statute implies that the failure to
give actual notice to a record owner who was living on the property and
whose whereabouts were known does not affect the validity of the tax sale,
it conflicts with constitutionally protected due process notice
requirements.
Garcia, 2008 OK 90,
¶15.
C. Under the facts of this case, Crownover did not receive
constitutionally adequate notice of the pending sale of his property for
delinquent taxes.
¶27 It is undisputed that Crownover failed to timely pay taxes on the subject
property. It is also undisputed that the County fulfilled the notice
requirements of 68 O.S. 2011 §
3106 by publishing notice and by sending notice via certified mail to the
address it had been given for Crownover. The County asserts this was sufficient
notice, regardless of whether the notice was actually received by Crownover, and
further cites Crownover's own need to notify them of an address change and his
presumed knowledge that he would owe taxes.
¶28 However, the record contains undisputed evidence that the notice to
Crownover sent via certified mail was never received by him, was in fact
returned to the County marked as "not deliverable as addressed unable to
forward." The Court of Civil Appeals erred by declaring that this envelope was
mentioned but not actually attached to the record. Pursuant to Jones,
when confronted with the knowledge that its notice via certified mail was not
delivered and therefore not seen by Crownover, the County was required to
attempt some other reasonable method of supplying notice to Crownover. 547 U.S.
at 225. The Prior decisions of this Court also indicate that simple compliance
with the notice statute is not always enough to satisfy the requirements of due
process. See Garcia, 2008 OK
90, ¶15; Ziegler, 1989 OK
113, ¶6.
¶29 The County could have taken other reasonable steps to attempt to provide
Crownover with notice, without necessarily being obligated to conduct a lengthy
hunt for a correct address. See Jones, 547 U.S. at 235-36. Like the
Supreme Court of the United States, we do not think that a person who actually
desired to inform a real property owner of an impending tax sale of the real
property would do nothing when a certified letter sent to the owner is returned
unclaimed. Jones, 547 U.S. at 229. The return of the certified notice
undelivered was a red flag that should have tipped off the County it needed to
follow up. Ziegler, 1989 OK
113, ¶6. The County's failure to make any further effort resulted in
Crownover being denied constitutionally sufficient notice of the eminent sale of
his property.
¶30 The Jones decision also deals succinctly, from the standpoint of
U.S. Const. amend. XIV, § 1, with the County's claims concerning Crownover's
obligations. Crownover's failure to timely pay taxes and his failure to provide
an updated address to the County did not relieve it of its obligation to provide
him with constitutionally adequate notice prior to selling his property.
Jones, 547 U.S. at 229, 232. We agree.
CONCLUSION
¶31 Under the undisputed facts of this cause, Crownover was not provided with
constitutionally adequate notice prior to the sale of his property for
delinquent taxes. Jones, 547 U.S. at 225. See Ziegler, 1989 OK 113, ¶6; Luster, 1986 OK 74, ¶18. Accordingly, the
tax sale and resultant resale tax deed are void. Garcia, 2008 OK 90, ¶15; Ziegler, 1989 OK 113, ¶6; Luster, 1986 OK 74, ¶¶18-19. Summary
judgment in favor of the County was improper. The opinion of the Court of Civil
Appeals is vacated, the trial court's order granting summary judgment in favor
of the County is reversed, and this cause is remanded to the trial court for
further proceedings consistent with this opinion.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; TRIAL COURT REVERSED AND
CAUSE
REMANDED.
REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, and GURICH, JJ.,
concur.
WINCHESTER (by separate writing) and TAYLOR, JJ., dissent.
WINCHESTER, J., with whom TAYLOR, J. joins, dissenting,
¶1 The Oklahoma State Constitution, echoing the United States Constitution,
provides that "[n]o person shall be deprived of life, liberty, or property,
without due process of law." Although, as the majority notes, the "definitional
sweep" of this clause is coextensive with its federal counterpart, this Court's
decisions with regard to state constitutional questions are based on Oklahoma
law. In Re Adoption of K.P.M.A., 2014 OK 85, ¶ 17, n.3, 341 P.3d 38,
44.
¶2 The United States Supreme Court has held that, to comport with the Due
Process Clause, States must provide "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action."
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). The Court in Dusenbery v. United States, 534 U.S. 161, 170
(2002), expressly noted, however, that "heroic efforts" are not required. To the
contrary, the Supreme Court has rejected "[a] construction of the Due Process
Clause which would place impossible or impractical obstacles in the way [of the
State]." Mullane, 339 U.S. at 313-14. In determining whether an
individual has been afforded due process, therefore, courts must balance the
State's interest in efficiently managing its administrative system and an
individual's interest in adequate notice. See id. at 314. To that end,
the Supreme Court has recognized that states need not achieve actual notice in
order to satisfy the requirements of the Due Process Clause. See
Dusenbery, 534 U.S. at 169-70.
¶3 Oklahoma's statute governing notice of delinquent taxes, 68 O.S. 2011, § 3106,1 mandates
that--prior to selling real property for which taxes have been unpaid for three
or more years--county treasurers publish notice of taxes owed upon the property,
as well as send notice by certified mail to the record owner of the property.
Nothing in the text of the law requires that the county treasurer take
additional steps to ensure the property owner receives actual notice. In
fact, the statute notes that "[f]ailure to receive said notice shall not
invalidate said sale." Id.
¶4 In rare cases, however, this Court has required that the State do more
than simply comply with the letter of the law in order to provide due process.
But the only circumstances in which notice by mail and publication is inadequate
under the Due Process Clause involve "situations where the state or local
government knew at the outset that its notice efforts were destined to fail and
knew how to rectify the problem prior to sending notice." Id. at 244
(citing Robinson v. Hanrahan, 409 U.S. 38, 39 (1972) (per curiam)
(intended recipient known to be in jail); Covey v. Town of Somers,
351 U.S. 141, 145 (1956) (intended recipient known to be incompetent and without
a guardian)). In those situations, the county treasurer certainly has a
responsibility to comply with the statute and take steps to ensure proper notice
is served. But this duty arises from the implicit requirement that notice of an
impending tax sale must be made in good faith--not from any requirement that
county treasurers must always take steps to ensure actual notice. See
Mullane, 339 U.S. at 315.
¶5 Even though the county treasurer in this case knew from the certified mail
receipt that the attempted delivery of notice had been unsuccessful, he
certainly did not believe at the outset that his efforts were "destined to
fail." A certified mail receipt verifies "that an article was delivered or that
a delivery attempt was made."2 The absence of any receipt, therefore, indicates
that the mail was lost, delayed, or otherwise rerouted from its intended
destination, and should undoubtedly trigger an additional duty for the county
treasurer to resend the mail or take other steps to comply with the statute. A
"not deliverable as addressed" receipt, on the other hand, simply indicates that
the certified mail service was unable to make actual contact with the property
owner. Because the statute does not require the county treasurer to provide
actual notice, and because a good-faith attempt at notice is sufficient under
the Due Process Clause, see Mullane, 339 U.S. at 315, service that
results in a "not deliverable as addressed" receipt (in addition to publication)
satisfies the statutory and constitutional requirements.
¶6 A majority of this Court would essentially redraft 68 O.S. 2011, § 3106 and impose
unreasonable and impractical burdens on the State in the exercise of its
administrative duties. Specifically, the majority suggests that the county
treasurer should have located the check with which the property owner last paid
taxes. See supra, at ¶¶ 28-29. Not only was the check in this case
written more than three years prior to the notice of delinquent taxes, but also
there was no indication that the address on the check was in fact the owner's
new place of residence. Many people use checks that do not match their current
addresses, either for the sake of convenience (e.g., so they do not need
to order new checks after changing addresses) or due to special circumstances
(e.g., when somebody other than the property owner pays the taxes). But
under the majority's logic, 68 O.S.
2011, § 3106 requires that the county treasurer record every address on
every check and every other document that comes to his office, and then send
notice to each of those addresses in order to comport with due process. The
majority demands that, whenever a county treasurer doubts whether an interested
party has actually received notice, he must consider additional methods to
provide such notice, including, but not limited to, sending certified mail to
every address associated with the property owner, whether or not any of those
addresses is the address of record in the county treasurer's office.3 And if those
notices are ineffective, then the treasurer must consider additional
methods, ad infinitum, to the point that he would effectively be
required to achieve actual notice.
¶7 Not only does the majority's interpretation of the statute disregard
existing case law holding quite clearly that county treasurers need not achieve
actual notice, it also places counties at the mercy of delinquent taxpayers. To
avoid being served notice, tax evaders could simply avoid contact with process
servers standing on their doorsteps, or move to a different address and neglect
to tell the county treasurer. Under the majority's holding, such evasive antics
would require the treasurer to employ additional tactics to make contact with
the property owner until either all possible methods are exhausted or the
treasurer decides that the task is not worth its cost. Such requirements
increase the amount of time and money that must be expended by the county to
comply with the law. Those additional costs are then passed on to citizens who
actually do pay their taxes.
¶8 Both parties and the majority recognize that the McIntosh County Treasurer
in this case complied with the requirements of 68 O.S. 2011, § 3106. It is not the
fault of the county that Crownover did not report his change of address, and it
should not fall to the county to engage in a paper chase to locate a missing
person. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 792, 798
(1983) (holding that "notice mailed to [the affected party's] last known
available address" is sufficient to satisfy due process). The constitutional
requirement is not that individuals be provided with every process of
law, only due process of law. What the majority opinion--and the Supreme
Court in Jones v. Flowers, 547 U.S. 220 (2006)--fails to supply is a
clear definition of due process. Without that clarity, there is no limit to how
far counties must go to provide notice sufficient under the Due Process Clause.
Because in this case the county treasurer gave due process in supplying notice
under the terms of the statute, the ruling of the Court of Civil Appeals should
be affirmed. For these reasons, I respectfully dissent.