B. Additional Concerns
I have followed the instruction of the Court of Appeals as set out above and found the facts
required to answer the two inquiries it posed. Having done so, I have entered summary judgment
in favor of the defendants. Although I have disposed of this dispute by final order in accordance
with the law as announced by the Court of Appeals, I continue this writing to express my respectful,
and, I trust, principled disagreement with certain aspects of the Fourth Circuit’s opinion.
I am puzzled by each of the two inquiries I was ordered to consider upon remand. First, I am
unable to understand why the Court of Appeals believes that a re-examination of the public records
is sufficient to satisfy the requirements of due process. Second, I am confused as to how the result
of any follow-up examination of the public records would be relevant to a due process analysis.
When the initial notices were returned as undeliverable, Advantage knew that Ms. Plemons
had not received actual notice and that her property rights would be extinguished by the impending
issuance of the tax deed. In the original summary judgment order, I held that once Advantage knew
that Ms. Plemons had not received the notice, due process required Advantage to undertake further
inquiry to determine her whereabouts. The appeals panel majority embraced this finding, and noted
in its remand order that “[w]hen a party required to give notice knows that a mailed notice has, for
some reason, failed to inform a person holding a property interest of the impending deprivation, the
notice does not pass constitutional muster.” Plemons, 396 F.3d at 573. The majority further stated
that this court “properly held that the reasonable diligence standard mandated by Mullane and its
progeny required some follow up effort here.” Id. Instead of finding that Advantage should have
expanded its search beyond the public records, however, the Court of Appeals concluded that
“reasonable diligence required Advantage to search all publicly available county records once the
prompt return of the mailings made clear that its initial examination to the title of the Echo Road
property had not netted Plemons’ correct address.” Id. at 578.
As the defendants explain in their pending motion for summary judgment, they “examined
records maintained by the Clerk and the Sheriff of Kanawha County in preparing [their] report to the
clerk.” This first title examination occurred in December, 2001, and the defendants’ initial efforts
are clearly explained in the record as it appeared before the Fourth Circuit on appeal. See,
Defendants’ Memorandum of Law [Docket 15] at 8; Defendants’ Brief on Due Process [Docket 24]
at 3. A re-examination of the same county records would have been a mere gesture. As the Supreme
Court noted in Mullane, “when notice is a person’s due, process which is a mere gesture is not due
process.” Mullane, 339 U.S. at 315.
I am further puzzled by the second subject of inquiry mandated by the Court of Appeals. I
think it immaterial whether the defendants would have actually ascertained Ms. Plemons’ address
upon a re-examination of the public records. I believe that the only relevant inquiry is to ask what
process would be undertaken by a reasonable person under the specific circumstances of the case.
The result obtained does not speak to the reasonableness of the method of inquiry. The question of
what process is due is distinct from what the process would actually reveal. As the Supreme Court
noted in Fuentes v. Shevin, “[t]o one who protests against the taking of his property without due
process of law, it is no answer to say that in his particular case due process would have led to the
same result . . . .” 407 U.S. 67, 86 (1972) (quoting Coe v. Amour Fertilizer Works, 237 U.S. 413,424
(1915)).
The test for what attempt at notice meets due process requirements was simply stated by the
United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950). In Mullane, the Court held that, prior to any action affecting an interest in life, liberty, or
property protected by the due process clause, 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.” Id. (emphasis added). Significantly, the Court
reasoned that “[t]he means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it.” Id. at 315 (emphasis added). Thirty-three years later in
Mennonite Board of Missions v. Adams, the Court further explained that mailing notice is required
when a party’s address can be “ascertained through reasonably diligent efforts,” but that
“extraordinary efforts” are not required. 462 U.S. 791, 798 n.4 (1983). In this case, the Court of
Appeals summarized Mullane and its progeny by extrapolating the following core principle:
“reasonable efforts designed to ‘actually inform’ a party with a property interest of possible
deprivation of that interest remain the touchstone of constitutionally adequate notice.” Plemons, 396
F.3d at 577 (emphasis added). Thus, after the Court’s decision in Mennonite, the process due prior
to a tax sale is “notice reasonably calculated” to inform those parties who hold “legally protected
property interests” whose names and addresses are “reasonably ascertainable” by “reasonably
diligent efforts.” Id.
Under West Virginia law, this due process inquiry creates a conflict of interest because the
party charged with providing this constitutionally required notice is also the tax lien purchaser, who
has a countervailing interest in profiting from a property owner’s failure to redeem. This conflict of
interest makes it imperative that courts strictly scrutinize the efforts of a tax lien purchaser to
ensure that they are “such as one desirous of actually informing the absentee” might reasonably
adopt. Mullane, 306 U.S. at 315.
Instead of re-examining the public records and retracing its earlier, fruitless steps, I
respectfully assert that Advantage reasonably could have employed several simple, inexpensive and
efficient means to determine Ms. Plemons’ proper address. I suggested, in my prior order, that
Advantage could have simply called Ms. Plemons on the telephone, as she was listed in the local
telephone directory throughout the notice period.1 Advantage could have asked the tenants living
at the subject property for help locating Ms. Plemons. Finally, I noted that Advantage could have
made inquiry to others holding an interest in the property, such as Ms. Plemons’ mortgagee.
In my prior opinion, I ultimately found it unnecessary to reach the question of whether
Advantage acted reasonably because after the mailed notice was returned unclaimed, Advantage
took no action. Advantage made no further inquiry prior to publishing notice. Inaction in the face
of a constitutional requirement of reasonably diligent efforts could not, I thought, satisfy the
requirements of due process.
According to Mullane, Mennonite, and the balancing tests set out in well known cases such
as Matthews v. Eldridge, due process offers flexible protection that must be tailored to the
circumstances of each case. 424 U.S. 319 (1976). In addition to being fact-specific, I think of due
process as necessarily contemporary in nature. As Justice Frankfurter noted:
“Due Process,” unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place, and circumstances.
Expressing as it does in its ultimate analysis respect enforced by law
for that feeling of just treatment which has been evolved through
centuries of Anglo-American constitutional history and civilization,
“due process” cannot be imprisoned within the treacherous limits of
any formula . . . . Due process is not a mechanical instrument. It is
not a yardstick. It is a process. It is a delicate process of adjustment
inescapably involving the exercise of judgment by those whom the
Constitution entrusted with the unfolding of the process.
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-63 (Frankfurter, J., concurring).
In the “time, place, and circumstances” of this case, one who actually wanted to inform Ms.
Plemons that her house was to be conveyed because of a failure to pay roughly $3,000 in taxes and
fees would not have looked for her in the dusty corners of the Kanawha County record room. In the
age of telephones, internet search engines, online newspapers, online people-finders, and readily
available credit reports, most people can easily find someone. Thus, if a reasonable person were
charged with the duty of locating Ms. Plemons in the relatively small city of Charleston, West Virginia, it
is my belief that he would be likely to employ “Google” to find her name, call
information to learn her telephone number, contact her lending bank, or call her ex-husband.
Instead, Advantage searched the public records for Ms. Plemons’ address and mailed written notices
to two of the addresses contained therein.3 When the notices were found to be undeliverable,
Advantage did nothing further. I continue to believe that those efforts failed to meet the
constitutional standards of due process.
III. Conclusion
Section 11A-4-4 of the West Virginia Code allows an interested party to set aside a tax sale
deed if that party proves by clear and convincing evidence that the tax sale purchaser failed to give
constitutionally adequate notice. In the tax sale context, notice is constitutionally adequate when the
purchaser makes a reasonably diligent effort to provide the interested party with actual notice prior
to the issuance of a tax sale deed. When notice sent by certified mail is returned unclaimed, the
reasonable diligence standard requires the purchaser to make further inquiry reasonably calculated
to locate the interested party’s correct address.
In the context of this case, the Court of Appeals has interpreted reasonable diligence as
requiring an “examination (or re-examination) of all available public records when initial mailings
have been promptly returned as undeliverable.” Plemons, 369 F.3d at 577. Because Ms. Plemons’
Quarry Pointe address was not “ascertainable” from the public records I FIND that she is not entitled
to set aside the tax sale deed now held by Advantage’s successor in interest, Douglas Q. Gale. For
the reasons stated herein, the court GRANTS the defendants’ Motion for Summary Judgment
[Docket 67] and DENIES the plaintiff’s motion for summary judgment [Docket 70]. Because the
court’s order does not rely on the discovery and evidence relating to Jerry Lipscomb, the defendants’
Motion to Exclude [Docket 72] is DENIED as MOOT. The court DIRECTS the Clerk to send a
copy of this Order to counsel of record and any unrepresented party, and DIRECTS the Clerk to post
this published opinion at http://www.wvsd.uscourts.gov.
ENTER: July 27, 2005
I have followed the instruction of the Court of Appeals as set out above and found the facts
required to answer the two inquiries it posed. Having done so, I have entered summary judgment
in favor of the defendants. Although I have disposed of this dispute by final order in accordance
with the law as announced by the Court of Appeals, I continue this writing to express my respectful,
and, I trust, principled disagreement with certain aspects of the Fourth Circuit’s opinion.
I am puzzled by each of the two inquiries I was ordered to consider upon remand. First, I am
unable to understand why the Court of Appeals believes that a re-examination of the public records
is sufficient to satisfy the requirements of due process. Second, I am confused as to how the result
of any follow-up examination of the public records would be relevant to a due process analysis.
When the initial notices were returned as undeliverable, Advantage knew that Ms. Plemons
had not received actual notice and that her property rights would be extinguished by the impending
issuance of the tax deed. In the original summary judgment order, I held that once Advantage knew
that Ms. Plemons had not received the notice, due process required Advantage to undertake further
inquiry to determine her whereabouts. The appeals panel majority embraced this finding, and noted
in its remand order that “[w]hen a party required to give notice knows that a mailed notice has, for
some reason, failed to inform a person holding a property interest of the impending deprivation, the
notice does not pass constitutional muster.” Plemons, 396 F.3d at 573. The majority further stated
that this court “properly held that the reasonable diligence standard mandated by Mullane and its
progeny required some follow up effort here.” Id. Instead of finding that Advantage should have
expanded its search beyond the public records, however, the Court of Appeals concluded that
“reasonable diligence required Advantage to search all publicly available county records once the
prompt return of the mailings made clear that its initial examination to the title of the Echo Road
property had not netted Plemons’ correct address.” Id. at 578.
As the defendants explain in their pending motion for summary judgment, they “examined
records maintained by the Clerk and the Sheriff of Kanawha County in preparing [their] report to the
clerk.” This first title examination occurred in December, 2001, and the defendants’ initial efforts
are clearly explained in the record as it appeared before the Fourth Circuit on appeal. See,
Defendants’ Memorandum of Law [Docket 15] at 8; Defendants’ Brief on Due Process [Docket 24]
at 3. A re-examination of the same county records would have been a mere gesture. As the Supreme
Court noted in Mullane, “when notice is a person’s due, process which is a mere gesture is not due
process.” Mullane, 339 U.S. at 315.
I am further puzzled by the second subject of inquiry mandated by the Court of Appeals. I
think it immaterial whether the defendants would have actually ascertained Ms. Plemons’ address
upon a re-examination of the public records. I believe that the only relevant inquiry is to ask what
process would be undertaken by a reasonable person under the specific circumstances of the case.
The result obtained does not speak to the reasonableness of the method of inquiry. The question of
what process is due is distinct from what the process would actually reveal. As the Supreme Court
noted in Fuentes v. Shevin, “[t]o one who protests against the taking of his property without due
process of law, it is no answer to say that in his particular case due process would have led to the
same result . . . .” 407 U.S. 67, 86 (1972) (quoting Coe v. Amour Fertilizer Works, 237 U.S. 413,424
(1915)).
The test for what attempt at notice meets due process requirements was simply stated by the
United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950). In Mullane, the Court held that, prior to any action affecting an interest in life, liberty, or
property protected by the due process clause, 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.” Id. (emphasis added). Significantly, the Court
reasoned that “[t]he means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it.” Id. at 315 (emphasis added). Thirty-three years later in
Mennonite Board of Missions v. Adams, the Court further explained that mailing notice is required
when a party’s address can be “ascertained through reasonably diligent efforts,” but that
“extraordinary efforts” are not required. 462 U.S. 791, 798 n.4 (1983). In this case, the Court of
Appeals summarized Mullane and its progeny by extrapolating the following core principle:
“reasonable efforts designed to ‘actually inform’ a party with a property interest of possible
deprivation of that interest remain the touchstone of constitutionally adequate notice.” Plemons, 396
F.3d at 577 (emphasis added). Thus, after the Court’s decision in Mennonite, the process due prior
to a tax sale is “notice reasonably calculated” to inform those parties who hold “legally protected
property interests” whose names and addresses are “reasonably ascertainable” by “reasonably
diligent efforts.” Id.
Under West Virginia law, this due process inquiry creates a conflict of interest because the
party charged with providing this constitutionally required notice is also the tax lien purchaser, who
has a countervailing interest in profiting from a property owner’s failure to redeem. This conflict of
interest makes it imperative that courts strictly scrutinize the efforts of a tax lien purchaser to
ensure that they are “such as one desirous of actually informing the absentee” might reasonably
adopt. Mullane, 306 U.S. at 315.
Instead of re-examining the public records and retracing its earlier, fruitless steps, I
respectfully assert that Advantage reasonably could have employed several simple, inexpensive and
efficient means to determine Ms. Plemons’ proper address. I suggested, in my prior order, that
Advantage could have simply called Ms. Plemons on the telephone, as she was listed in the local
telephone directory throughout the notice period.1 Advantage could have asked the tenants living
at the subject property for help locating Ms. Plemons. Finally, I noted that Advantage could have
made inquiry to others holding an interest in the property, such as Ms. Plemons’ mortgagee.
In my prior opinion, I ultimately found it unnecessary to reach the question of whether
Advantage acted reasonably because after the mailed notice was returned unclaimed, Advantage
took no action. Advantage made no further inquiry prior to publishing notice. Inaction in the face
of a constitutional requirement of reasonably diligent efforts could not, I thought, satisfy the
requirements of due process.
According to Mullane, Mennonite, and the balancing tests set out in well known cases such
as Matthews v. Eldridge, due process offers flexible protection that must be tailored to the
circumstances of each case. 424 U.S. 319 (1976). In addition to being fact-specific, I think of due
process as necessarily contemporary in nature. As Justice Frankfurter noted:
“Due Process,” unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place, and circumstances.
Expressing as it does in its ultimate analysis respect enforced by law
for that feeling of just treatment which has been evolved through
centuries of Anglo-American constitutional history and civilization,
“due process” cannot be imprisoned within the treacherous limits of
any formula . . . . Due process is not a mechanical instrument. It is
not a yardstick. It is a process. It is a delicate process of adjustment
inescapably involving the exercise of judgment by those whom the
Constitution entrusted with the unfolding of the process.
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 162-63 (Frankfurter, J., concurring).
In the “time, place, and circumstances” of this case, one who actually wanted to inform Ms.
Plemons that her house was to be conveyed because of a failure to pay roughly $3,000 in taxes and
fees would not have looked for her in the dusty corners of the Kanawha County record room. In the
age of telephones, internet search engines, online newspapers, online people-finders, and readily
available credit reports, most people can easily find someone. Thus, if a reasonable person were
charged with the duty of locating Ms. Plemons in the relatively small city of Charleston, West Virginia, it
is my belief that he would be likely to employ “Google” to find her name, call
information to learn her telephone number, contact her lending bank, or call her ex-husband.
Instead, Advantage searched the public records for Ms. Plemons’ address and mailed written notices
to two of the addresses contained therein.3 When the notices were found to be undeliverable,
Advantage did nothing further. I continue to believe that those efforts failed to meet the
constitutional standards of due process.
III. Conclusion
Section 11A-4-4 of the West Virginia Code allows an interested party to set aside a tax sale
deed if that party proves by clear and convincing evidence that the tax sale purchaser failed to give
constitutionally adequate notice. In the tax sale context, notice is constitutionally adequate when the
purchaser makes a reasonably diligent effort to provide the interested party with actual notice prior
to the issuance of a tax sale deed. When notice sent by certified mail is returned unclaimed, the
reasonable diligence standard requires the purchaser to make further inquiry reasonably calculated
to locate the interested party’s correct address.
In the context of this case, the Court of Appeals has interpreted reasonable diligence as
requiring an “examination (or re-examination) of all available public records when initial mailings
have been promptly returned as undeliverable.” Plemons, 369 F.3d at 577. Because Ms. Plemons’
Quarry Pointe address was not “ascertainable” from the public records I FIND that she is not entitled
to set aside the tax sale deed now held by Advantage’s successor in interest, Douglas Q. Gale. For
the reasons stated herein, the court GRANTS the defendants’ Motion for Summary Judgment
[Docket 67] and DENIES the plaintiff’s motion for summary judgment [Docket 70]. Because the
court’s order does not rely on the discovery and evidence relating to Jerry Lipscomb, the defendants’
Motion to Exclude [Docket 72] is DENIED as MOOT. The court DIRECTS the Clerk to send a
copy of this Order to counsel of record and any unrepresented party, and DIRECTS the Clerk to post
this published opinion at http://www.wvsd.uscourts.gov.
ENTER: July 27, 2005
This page is incomplete and still
being worked on...
being worked on...
Last revised 01-15-09
All blue highlighted text links to
additional notes and information
All blue highlighted text links to
additional notes and information
"Just because something is legal,
doesn't mean it's right..."
doesn't mean it's right..."
Here is the text of Judge Goodwin's 'Additional Concerns'
and the brief's "Conclusion"
(footnotes have been left out):
and the brief's "Conclusion"
(footnotes have been left out):
My home, I miss it...
