deWet v. Rollyson

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

ANN BARCLAY deWET, and

LAURENCE E.T. SMITH, in their capacities

as personal representatives of the Estate of

ANN TIERNEY SMITH,

Plaintiffs,

v. CIVIL ACTION NO. 1:21-cv-00328

G. RUSSELL ROLLYSON, JR.,

in his official and individual capacities,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending are Defendant Deputy Commissioner G. Russell Rollyson, Jr.’s Motion

for Summary Judgment [ECF 47], and Plaintiffs Ann Barclay deWet and Laurence E.T. Smith’s

Motion for Summary Judgment [ECF 51], both filed September 22, 2023.

This case deals with the issuance of a tax deed to a lien purchaser, Ed Boer, by G.

Russell Rollyson, Deputy Commissioner of Delinquent and Non-entered Lands in the West

Virginia Auditor’s Office (“Deputy Commissioner Rollyson”). The tax deed covered property

owned by Ann Tierney Smith, now deceased, following her nonpayment of taxes during an

extended illness. After this case was filed, Plaintiffs arrived at a settlement with Mr. Boer. The

settlement restored the subject property to Plaintiffs.

Plaintiffs continue, however, to seek a damage award against Deputy

Commissioner Rollyson individually, arising out of his sale of the subject property to Mr. Boer.

The damages include “but [are] not limited to: 1) a $400,000 purchase contract on the [subject]

Property that fell apart only after the purchaser informed Plaintiffs of the clouded title; 2) the

interest, fees and a premium that Ms. Smith had to pay to . . . Ed Boer . . . to recover clear title to

the Bluefield Property . . . ; and 3) legal fees that at this point exceed $80,000.” [ECF 65 at 11-12

(proposed pretrial order)].

In commenting upon an excerpt from Jones v. Flowers -- the most recent Supreme

Court decision on the process due when the state conveys tax deeds, the acknowledged Dean of

West Virginia property law -- who has written and spoken widely on the subject -- stated as

follows:

This statement [in Jones] clearly recognizes a case specific test, and given the fact

the West Virginia statute “assigns” this duty to the tax lien purchaser, the

importance of the Court's oversight on a case by case basis is apparent.

John W. Fisher, II, Delinquent and Non-Entered Lands and Due Process, 115 W. Va. L. Rev. 43,

78 (2012) (citing Jones v. Flowers, 547 U.S. 220, 234 (2006) (emphasis added) (former Dean

Fisher commenting on the statement in Jones as follows: “We think there were several reasonable

steps the State could have taken. What steps are reasonable in response to new information depends

upon what the new information reveals.”)).

Dean Fisher was right. The decision in Jones is replete with similar equivocation

grounded in, on the one hand, assuring due process is satisfied when property is sold for delinquent

taxes and, on the other, not dictating to the several states, their legislators, and officers how their

statutory sale schemes ought to be drafted and the specific actions they must take when confronted

with notice failures. See, e.g., id. at 225 (“We hold 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.” (emphasis added)); id. at

227 (“That is a new wrinkle, and we have explained that the ‘notice required will vary with

circumstances and conditions.’”) (cleaned up) (emphasis added); id. (“The question presented is

whether such knowledge on the government's part is a ‘circumstance and condition’ that varies the

‘notice required.’”); id. at 234 (“But before forcing a citizen to satisfy his debt by forfeiting his

property, due process requires the government to provide adequate notice of the impending

taking.”); id. at 234 (“[i]t is not our responsibility to prescribe the form of service that the

[government] should adopt . . . .”).

It is one thing to restore property -- even at a cost -- to a former owner who lost it

through due process defects in tax sale mechanics. The Court is prepared to say, on these facts,

that Deputy Commissioner Rollyson should have required more of Mr. Boer and, indeed, that his

failure to do so worked a due process violation upon Ms. Smith. But it is another matter entirely

to hold Deputy Commissioner Rollyson personally liable for damages in a setting where the law

governing his actions has so much play in the joints, and where the due process rulebook is

necessarily developed on an ad hoc basis. For that reason, as more fully discussed within, Deputy

Commissioner Rollyson is entitled to qualified immunity.

I.

On June 8, 2021, Ms. Smith instituted this action.1 Plaintiffs allege Deputy

Commissioner Rollyson, in both his official and individual capacity, failed to provide Ms. Smith

proper notice prior to issuing a tax deed to Mr. Boer, thus visiting upon her an unconstitutional

property deprivation in violation of the Fourteenth Amendment. Plaintiffs seek actual damages,

costs, and reasonable attorney fees pursuant to 42 U.S.C. § 1983, as well as any prospective

1 Ms. Smith passed on December 27, 2021. On January 4, 2022, a suggestion of death was

filed. [ECF 17]. On April 4, 2022, Ann Barclay deWet and Laurence E.T. Smith moved for

substitution. [ECF 20]. On August 4, 2022, the motion was granted by Agreed Order [ECF 21].

injunctive relief the Court deems “just, proper and appropriate.” [ECF 1 at 17].

Ms. Smith inherited two parcels in Mercer County, namely, (1) a Class II property

at 625 Mountain View Avenue in Bluefield (“Property”), and (2) an adjoining lot identified as

LOT UNION (“Union Lot”) (Parcel ID 03 27004800000000). [Id. ¶ 6]. She resided in Washington,

D.C., for most of her life. She then moved to the Property in 1996. [Id. ¶¶ 5, 8]. Her prior address

was 4343 Westover NW Place, Washington, D.C., 20016. [Id. ¶ 5 (“Washington Address”)]. While

residing at the Property, she used PO Box 370, Bluefield, West Virginia, 24701 (“Bluefield PO

Box”). In 2007, she moved to Kentucky to undergo cancer treatment. [Id. ¶ 9]. Her Kentucky

address was 441 Escondida Road, Paris, Kentucky, 40361. [Id. ¶ 35 (“Former Kentucky

Address”)]. During this time, Ms. Smith returned to the Property intermittently, but never there

resided again. [Id. ¶ 10]. In November 2016, Ms. Smith suffered a stroke and never returned to the

Property. [Id. ¶ 11, ECF 52 at 2]. She moved in with her daughter and surrendered the Bluefield

PO Box. [ECF 1 ¶ 12, 36]. It was not until December 12, 2017, that her mailing address for the

Property and the Union Lot on file with Mercer County was changed from the Bluefield PO Box

to yet another location, namely, PO Box 290, Paris, Kentucky, 40362. [Id. ¶ 18 (“Kentucky PO

Box”)].

Following her stroke, Ms. Smith had trouble handling her finances. The 2016

Property taxes were not paid. [Id. ¶ 15]. On November 6, 2017, Ed Boer purchased the tax lien at

the Sheriff’s sale for $8,214.12 and received a Certificate of Sale. [Id. ¶ 17]. On October 29, 2018,

Mr. Boer provided Deputy Commissioner Rollyson with four addresses to send the Notices to

Redeem required by statute: (1) the Property; (2) the Bluefield PO Box; (3) 509 9th Street, NW,

Washington, D.C., 20004 (“Washington Alternate Address”), and (4) the Washington Address.

[Id. ¶ 27]. Importantly, at the time Mr. Boer supplied these addresses, the correct mailing address

for Ms. Smith -- namely the Kentucky PO Box -- was spread on the public record in the Mercer

County Clerk’s Office. It had been so recorded for nearly a year. Mr. Boer did not provide it to

Deputy Commissioner Rollyson. And Deputy Commissioner Rollyson did not require an updated

search from Mr. Boer of that central, county repository. Deputy Commissioner Rollyson then

mailed the Notices to Redeem via certified mail to the four addresses. Notices by first class mail

were also sent to the Property and the Bluefield PO Box. [Id. ¶¶ 30, 31]. The Notice to Redeem

mailed to the Property was not addressed to “Occupant.” [Id. ¶ 31]. All of these efforts were, of

course, fruitless in providing actual notice, inasmuch as Ms. Smith was then residing in Kentucky

(and easily reachable through her mailing address to the Kentucky PO box on file in the Mercer

County Clerk’s Office had Mr. Boer looked anew or had Deputy Commissioner Rollyson required

him to do so).

As one would expect, the Notices to Redeem sent via certified mail were returned

as undeliverable or unclaimed; those mailed via first class mail were returned as either “Return to

Sender Unclaimed Unable to Forward” or “Return to Sender Not Deliverable as Addresses Unable

to Forward.” [Id. ¶ 32]. Thereafter, in January, February, and April of 2019, Deputy Commissioner

Rollyson sent Mr. Boer four individual letters stating “[t]he above listed notice to redeem was

mailed, at your instruction and which was return[ed] as undeliverable, unclaimed, or refused.”

[ECF 1-1 at 8, ECF 47-7]. The letter also advised that personal service was now necessary under

governing law. [Id.]. One might thus expect at this point that Mr. Boer -- in reformulating his

search for a deliverable address for Ms. Smith -- would have contacted the Mercer County Clerk’s

Office to search for the updated address, namely, the Kentucky PO Box, that was there listed for

a year and a half by this point. He did not do so. He instead provided to Deputy Commissioner

Rollyson (1) the Property’s physical address, (2) the Washington Address, (3) the Washington

Alternate Address, and (4) the Former Kentucky Address. [ECF 1 ¶ 35]. Importantly, as noted

above, Mr. Boer knew in responding to Deputy Commissioner Rollyson that the first three “new”

addresses he supplied were ineffective, as the earlier mailings thereto were previously returned.

Deputy Commissioner Rollyson then used these three bad addresses, and the single new (and bad)

address, for the next step described below.

On February 27, April 8, and May 8, 2019, a process agent attempted service upon

Ms. Smith at the Washington Address and the Washington Alternate Address [Id. ¶ 38]. He posted

a notice on the outside of the buildings there located but did not leave the actual Notice to Redeem.

[Id.]. On March 7, 2019, a process agent additionally attempted unsuccessfully to serve Ms. Smith

at the Former Kentucky Address. [Id. ¶ 37].

Mr. Boer did not attempt, and Deputy Commissioner Rollyson did not require,

newspaper publication of the Notice to Redeem. [Id. ¶ 39]. Again, at this point, Ms. Smith’s

Kentucky PO Box had been on file with the Mercer County Clerk’s Office for more than a year.

[Id. ¶ 18]. Nevertheless, on April 1, 2019, Deputy Commissioner Rollyson granted Mr. Boer a tax

deed to the Property. The tax deed, which was ultimately voided due to the settlement, was

recorded on June 12, 2019.

Just seven months later, on November 4, 2019, Mr. Boer purchased the tax lien on

the Union Lot. [Id. ¶ 48]. In January 2021, Deputy Commissioner Rollyson issued Notices to

Redeem (1) via certified mail to the Kentucky PO Box and 5080 Lexington Road, Paris, Kentucky,

40361 (“Current Kentucky Address”), (2) via process server to the Washington Alternate Address

and the Current Kentucky Address, and (3) via publication in the Bluefield Daily Telegraph in

accordance with the Notice to Redeem Form completed by Mr. Boer. [Id. ¶ 49, ECF 51-10]. Ms.

Smith received the Notices to Redeem arriving by certified mail at the Kentucky PO Box and by

process server at the Current Kentucky Address, after which she redeemed the Union Lot. [Id. ¶

52, 54, 56].

After Ms. Smith instituted this action, as noted, she settled her claims against Mr.

Boer [ECF 15]. Thus, Count II against Deputy Commissioner Rollyson alone remains. Count II

pleads the subject due process claim. The parties dispute whether Deputy Commissioner

Rollyson’s issuance of the tax deed worked a due process violation when (1) he did not send a

copy of the Notice to Redeem to the Property addressed to “Occupant”, (2) he did not publish the

Notice to Redeem, and (3) without first searching the public record or requiring Mr. Boer to do so,

he caused personal service to occur at addresses where the Notices to Redeem sent by certified

mail were already returned as undeliverable or unclaimed.

Respecting the official capacity claim, Deputy Commissioner Rollyson asserts he

is not a “person” pursuant to 42 U.S.C. § 1983. Respecting the individual capacity claim, Deputy

Commissioner contends he complied with his statutory duties in service of due process. Deputy

Commissioner Rollyson also notes West Virginia Code section 11A-4-4(a) provides an exclusive

remedy in situations such as this, requiring an action between the putative purchaser and persons

entitled to notice. Finally, Deputy Commissioner contends he is entitled to qualified immunity.

Plaintiffs generally reply, inter alia, Deputy Commissioner Rollyson failed to take

reasonably available measures to achieve notice, inasmuch as he (1) posted notices at addresses

known to be undeliverable, (2) did not require the Mercer County Clerk’s Office records be

checked for Ms. Smith’s correct address, (3) failed to undertake required efforts to locate Ms.

Smith’s correct address, and (4) delivered the deed knowing Ms. Smith had not received proper

notice.

II.

A. Governing Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper

where “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the nonmoving

party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 246 (1986). “The nonmoving party must do so by offering ‘sufficient proof in

the form of admissible evidence’ rather than relying solely on the allegations of her pleadings.”

Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v.

Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)). The Court must “view the evidence in the

light most favorable to the [nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal

quotation marks and citation omitted); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651,

659 (4th Cir. 2018).

When faced with cross-motions for summary judgment, the Court applies the above

standard and must consider “each motion separately on its own merits to determine whether either

of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523

(4th Cir. 2003) (internal quotation marks omitted). “The court . . . cannot weigh the evidence or

make credibility determinations.” Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 569 (4th

Cir. 2015); see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017). In general, if “an issue

as to a material fact cannot be resolved without observation of the demeanor of witnesses in order

to evaluate their credibility, summary judgment is not appropriate” Fed. R. Civ. P. 56 advisory

committee’s note to 1963 amendment.

B. 42 U.S.C. § 1983

Title 42 U.S.C. § 1983 governs actions against state officers arising out of their

deprivations of constitutional rights:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983.

1. Official Capacity

“‘[T]he Supreme Court has made clear that ‘neither a State nor its officials acting

in their official capacities are “persons” under § 1983.’” Timpson ex rel. Timpson v. Anderson

Cnty. Disabilities & Special Needs Bd., 31 F.4th 238, 258 (4th Cir. 2022) (quoting Will v. Michigan

Dep't of State Police, 491 U.S. 58, 71 (1989)). “[N]either States nor state officials acting in their

official capacities constitute ‘persons’ within the meaning of the statute when sued for monetary

relief.” Fauconier v. Clarke, 966 F.3d 265, 279–80 (4th Cir. 2020) (citing Will, 491 U.S. at 71);

Hafer v. Melo, 502 U.S. 21, 27 (1991). However, “a state official in his or her official capacity,

when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions

for prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71, n. 10 (1989)

(citing Kentucky v. Graham, 473 U.S. 159, 167, n. 14 (1985)); see also Freeland v. Ballard, 6 F.

Supp. 3d 683, 693 (S.D.W. Va. 2014) (Johnston, J.)); Wilson v. United States, 332 F.R.D. 505,

517 (S.D.W. Va. 2019) (Chambers, J.).

It is additionally well settled that “[t]he judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S.

Const. amend. XI. “‘[T]he Eleventh Amendment permits suits for prospective injunctive relief

against state officials acting in violation of federal law.’” Lee-Thomas v. Prince George’s Cnty.

Pub. Sch., 666 F.3d 244, 249 (4th Cir. 2012) (quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431,

437 (2004)); Ex parte Young, 209 U.S. 123 (1908).

Under Ex parte Young, private citizens may sue state officials in their official

capacities in federal court to obtain prospective relief from ongoing violations of federal law. Allen

v. Cooper, 895 F.3d 337, 354 (4th Cir. 2018), aff'd, 589 U.S. 248, 140 (2020) (citing Frank v. Ross,

313 F.3d 184, 197 (4th Cir. 2002)). The Ex parte Young exception “‘permits a federal court to

issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal

law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh

Amendment.’” Biggs v. N. Carolina Dep't of Pub. Safety, 953 F.3d 236, 242 (4th Cir. 2020)

(quoting Bland v. Roberts, 730 F.3d 368, 390 (4th Cir. 2013)). “To determine if this exception

applies, we consider ‘whether the complaint alleges an ongoing violation of federal law and seeks

relief properly characterized as prospective.’” Id. (quoting Verizon Maryland, Inc. v. Pub. Serv.

Comm’n of Md., 535 U.S. 635, 645 (2002)).

Plaintiffs concede Deputy Commissioner Rollyson is not, at least in his official

capacity, subject to a damage award from his personal assets. They clarify the nature of their

putative official capacity claim against him as “seek[ing] to enjoin the Deputy Commissioner from

disregarding the Fourteenth Amendment’s guarantee of due process when it comes to that office’s

issuance of tax deeds on delinquent properties in the future.” [ECF 57 at 3]. They assert this

intention is apparent from their request in the Complaint for “[s]uch other and further relief in law

or equity [it] deems just, proper, and appropriate.” [ECF 1 at 17 ¶ H]. Further, the recently executed

Affidavit of Ms. deWet avers Plaintiffs seek “an injunction ordering the Deputy Commissioner to

comply with the Fourteenth Amendment’s guarantee of due process when issuing tax deeds for

delinquent properties in the future.” [ECF 57-1 at 2].

Deputy Commissioner Rollyson complains the request for prospective injunctive

relief is tantamount to an unofficial pleading amendment. That much is true. He further contends

the claim is absent from the operative Complaint. The Complaint pleads a remedy of “[d]eclaratory

and injunctive relief pursuant to 42 U.S.C. § 1983 to void the illegal and unconstitutional tax deed

of June 12, 2019, and declare Plaintiff[s] the continued lawful owner of the Property.” [ECF 1 at

16 ¶ B]. Mr. Boer, however, conveyed title to the Property by Quitclaim Deed to Ms. Smith as part

of their settlement. Deputy Commissioner Rollyson is thus correct that her restoration as owner of

the Property renders moot her request to void the tax deed and declare her the lawful owner. Her

additional contentions designed to avoid this result are meritless.

Accordingly, the Court GRANTS IN PART Deputy Commissioner Rollyson’s

Motion for Summary Judgment and DISMISSES the official capacity claim against him.

2. Individual Capacity and Qualified Immunity

A state actor sued in his individual capacity for monetary damages generally

qualifies as a suable “person” under Section 1983. Hafer v. Melo, 502 U.S. 21, 27 (1991). But he

may be entitled to qualified immunity. Qualified immunity is available only to those who do “not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)); Garrett v. Clarke, 74 F.4th 579, 583 (4th Cir. 2023). Determining whether

qualified immunity is appropriate involves a two-step inquiry. Saucier v. Katz, 533 U.S. 194, 200

(2001). First, the court considers “whether a constitutional right would have been violated on the

facts alleged.” Id. at 200. Next, the court examines whether that constitutional right was “clearly

established” at the time of the alleged violation, id. at 202, meaning “the contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing violates that

right,” Anderson v. Creighton, 483 U.S. 635, 630 (1987), See also Ray v. Roane, 948 F.3d 222,

228 (4th Cir. 2020). In making the Saucier inquiry, the court has discretion to decide which of the

two steps to address first, based on the facts and circumstances of the case at hand. Pearson v.

Callahan, 555 U.S. 223, 236 (2009); Omeish v. Kincaid, 86 F.4th 546, 557 (4th Cir. 2023); King

v. Riley, 76 F.4th 259, 265 (4th Cir. 2023).

A clearly established right is one that is “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Reichle v. Howards, 566

U.S. 658, 664 (2012) (cleaned up); see D.C. v. Wesby, 583 U.S. 48, 63 (2018); Garrett, 74 F.4th

at 584. “To determine if the right in question was clearly established, we first look to cases from

the Supreme Court, th[e] Court of Appeals, or the highest court of the state in which the action

arose.” Thompson v. Virginia, 878 F.3d 89, 99 (4th Cir. 2017) (citing Owens ex rel. Owens v. Lott,

372 F.3d 267, 279 (4th Cir. 2004)); Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023).

Absent “directly on-point, binding authority,” courts may also consider whether “the right was

clearly established based on general constitutional principles or a consensus of persuasive

authority.” Booker v. S. C. Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at

279. In sum, “existing precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).

To determine whether Deputy Commissioner Rollyson is entitled to qualified

immunity, the Court first addresses whether he violated Ms. Smith’s due process rights in issuing

the tax deed to Mr. Boer when, prior to issuing the tax deed, he (1) did not send a copy of the

Notice to Redeem addressed to “Occupant” at the Property, (2) did not publish the Notice to

Redeem, and (3) caused personal service to occur at the bad addresses. The Fourteenth Amendment

provides “nor shall any state deprive any person of life, liberty, or property, without due process

of law . . . .” U.S. Const. amend. XIV § 1. “Before a State may take property and sell it for unpaid

taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide

the owner ‘notice and opportunity for hearing appropriate to the nature of the case.’” Jones v.

Flowers, 547 U.S. 220, 223 (2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950)). “[W]hen 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.” Id. at 225 (emphasis added). It is further noted as follows:

Due process does not require that a property owner receive actual notice before the

government may take his property . . . . Rather, we have stated 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.” Mullane, 339 U.S. at 314.

Id. at 226 (internal citation omitted).

“West Virginia Code § 11A-3-22(d) (2013) . . . provides that, in order to comply

with the redemption notice requirements for Class II property, in addition to other notice

requirements set forth in W. Va. Code § 11A-3-22, notice must also be addressed to ‘Occupant’

and mailed to the property.” Syl. pt. 1, Archuleta v. US Liens, LLC, 240 W. Va. 519, 519, 813

S.E.2d 761, 761 (2018). “W. Va. Code § 11A-3-19 provides that a property owner must be served

notice of the right to redeem property as outlined under W. Va. Code § 11A-3-22.” Id. at 523, 813

S.E.2d at 765; W. Va. Code § 11A-3-19 (2018) (The purchaser of a tax lien shall “[p]repare a list

of those to be served with notice to redeem and request the State Auditor to prepare and serve the

notice as provided in § 11A-3-21 and § 11A-3-22.”). Section 11A-3-22(d) provides in relevant

part: “If the address of a person entitled to notice, whether a resident or nonresident of this state,

is unknown to the purchaser and cannot be discovered by due diligence on the part of the purchaser,

the notice shall be served by publication.” W. Va. Code § 11A-3-22 (2013).

“The right of a landowner to have the statutory procedures complied with before he

is deprived of his land is fundamental.” Archuleta, 240 W. Va. at 525, 813 S.E.2d at 767 (quoting

Morgan, 177 W. Va. at 106, 350 S.E.2d at 734) (cleaned up). The duty of the Auditor’s Office to

mail notice to the “Occupant” of a Class II property “is not imposed until a tax purchaser complies

with its duty under W. Va. Code § 11A-3-19 to provide the State Auditor with a list of names and

addresses that, when applicable, should include ‘Occupant’ as a named entity to receive notice.”

Id. “[T]he State Auditor does not have a duty to hazard a guess in every tax delinquency proceeding

as to when notice must be addressed and mailed to ‘Occupant.’ West Virginia Code § 11A-3-19

imposed the duty on the [tax lien purchaser] to inform the State Auditor that notice to ‘Occupant’

was also required.” Id.

In addition to finding that W. Va. Code § 11A-3-19 requires the Respondent to add

“Occupant” to the list of names submitted to the State Auditor, we also find that W.

Va. Code § 11A-3-22(d) requires the same. We understand that, read in isolation,

W. Va. Code § 11A-3-22(d) does not expressly state that the tax purchaser is

required to inform the State Auditor that notice must be addressed to “Occupant.”

However, such a requirement is implicit in statute’s purpose of protecting the rights

of property owners.

Id. at 526 n. 15, 768 n. 15.

Respecting the first issue, as noted, West Virginia Code section 11A-3-22(d)

required Deputy Commissioner Rollyson to “forward a copy of the notice sent to the delinquent

taxpayer by first class mail, addressed to ‘Occupant’, to the physical mailing address for the subject

property.” Deputy Commissioner Rollyson admits he did not do so. He responds this duty is not

imposed on him, however, until the tax purchaser (here, Mr. Boer) complies with his duty under

West Virginia Code section 11A-3-19. Archuleta, 240 W. Va. at 525, 813 S.E.2d at 767. Here, Mr.

Boer failed to provide Deputy Commissioner Rollyson with a list of names and addresses that,

“when applicable, should include “Occupant” as a named entity to receive notice.” Id. (emphasis

added); [ECF 47-3 at 2].

The Supreme Court of Appeals of West Virginia has found that West Virginia Code

section 11A-3-22(d) requires the “tax purchaser . . . to inform the State Auditor that notice must

be addressed to ‘Occupant.’” Archuleta, 240 W. Va. at 526 n.15, 813 S.E.2d at 768 n.15. Upon

review of the State Auditor’s Office Notice to Redeem Form completed by Mr. Boer for the

Property, none of the four addresses provided listed the recipient of the notice as “Occupant.”

[ECF 47-3 at 2]. Therefore, due to Mr. Boer’s failure to comply with his duty under West Virginia

Code sections 11A-3-19 and 22(d), there was no clearly established legal duty for Deputy

Commissioner Rollyson to send notice addressed to “Occupant.”

Respecting the second issue, Deputy Commissioner Rollyson contends he did not

have a duty to compel Mr. Boer to publish the Notice to Redeem. As discussed in the preceding

paragraph, however, at no point was Deputy Commissioner Rollyson requested by Mr. Boer to

serve notice by publication. West Virginia Code section 11A-3-22(d) does not explicitly impose a

duty on the Auditor’s Office to ensure notice by publication occurs in such an instance. West

Virginia Code section 11A-3-22(d) states in pertinent part:

If service by publication is necessary, publication shall be commenced when

personal service is required as set forth in this section and a copy of the notice shall

at the same time be sent by certified mail, return receipt requested, to the last known

address of the person to be served.

W. Va. Code § 11A-3-22(d). Read with the Supreme Court of Appeals’ holding in Archuleta,

however, the duty of the Auditor’s Office does not mature until prompted by the tax lien purchaser

to serve notice by publication. Archuleta, 240 W. Va. at 526 n.15, 813 S.E.2d at 768 n.15.

Additionally, when comparing the Notice to Redeem Form submitted by Mr. Boer for the Property

and the Union Lot, Mr. Boer selected publication for the Union Lot and the Auditor’s Office

published notice in the Bluefield Daily Telegraph. [ECF 51-5, 51-10]. Mr. Boer did not similarly

select publication for the Property. [Id.].2

Respecting the third issue, as early as December 12, 2017, a search of the Mercer

County Clerk’s Office records would have revealed the correct address for Ms. Smith. If a taxpayer

is unreachable during the assessment and collection process, one would reasonably expect him or

her to eventually appreciate the need to provide correct contact information to the taxing authority.

Mr. Boer thus would have been reasonably expected, on October 29, 2018, to make a new check

of those central, public records to ascertain if new contact information was available. Mr. Boer,

however, made no such check. He instead provided Deputy Commissioner Rollyson with four

other potential addresses. After Deputy Commissioner Rollyson mailed the Notices to Redeem to

those four addresses, however -- and they were promptly returned as undeliverable, unclaimed, or

not subject to forwarding -- it would have been both reasonable and, frankly, an exceptionally

simple matter, to use the January, February, and April 2019 follow-up letters to Mr. Boer to require

2 Moreover, as to the occupant and publication obligations, not every single statutory duty

under state law is imbued with a due process guarantee. Rivera v. Illinois, 556 U.S. 148, 158 (2009)

(“[T]he mistaken denial of a state-provided peremptory challenge does not, without more, violate

the Federal Constitution. ‘[A] mere error of state law,’ we have noted, ‘is not a denial of due

process.’”) (citations omitted)); Gryger v. Burke, 334 U.S. 728, 731 (1948); Engle v. Isaac, 456

U.S. 107, 121 & n. 21 (1982); Riccio v. County of Fairfax, 907 F.2d 1459, 1466 (1990) (“The Due

Process Clause regulates the manner in which a state deprives its citizens of interests in life, liberty,

and property. It is well established that the mere existence of a state rule does not necessarily create

an interest protectable by the Due Process Clause, and that, therefore, a state does not necessarily

violate the Constitution every time it violates one of its rules.”); Lazaridis v. Wehmer, 591 F.3d

666, 671 n. 6 (3rd Cir.2010) (“Although Lazaridis asserts due process violations, we do not

construe the alleged misapplication of state law as violative of substantive federal due process.

The constitution does not guarantee that the decision of state courts shall be free from error.”).

The Court is unaware of any case suggesting the occupant and publication duties rise to

the level of being protected by the Fourteenth Amendment. The duties are thus necessarily not of

the clearly established variety under Harlow and its progeny.

that he check the Mercer County Clerk’s Office records anew for Ms. Smith’s updated contact

information. But Deputy Commissioner Rollyson failed to do so.

It is worth pausing at this point to note that our Court of Appeals, in Plemons v.

Gale, 396 F.3d 569, 573 (4th Cir. 2005), observed many years ago that where it is “undisputed that

the notice sent to Occupant at the property’s mailing address was returned as undeliverable, it was

a reasonable assumption that further investigation at that address would be unsuccessful.” Id. at

577. Two other observations from the decision in Plemons are worth noting: (1) “[I]t is, at the very

least, reasonable to require examination (or re-examination) [by the tax lien purchaser] of all

available public records when initial mailings have been promptly returned as undeliverable,” id.,

and (2) a court must answer “whether [the owner of records’] proper address would have been

ascertainable from such a search,” id. at 578.

While Deputy Commissioner Rollyson commendably required personal service

following the mailing failures, Mr. Boer did not search the Mercer County Clerk’s Office records

as would have been incumbent upon him under Plemons. He instead provided to Deputy

Commissioner Rollyson four more addresses for personal service upon Ms. Smith, knowing three

of those addresses had previously been the subject of returned mailings. Importantly, at this point,

Ms. Smith’s Kentucky PO Box had been on file with the Mercer County Clerk’s Office for one

and a half years.

Following the decision in Plemons, it was a natural, reasonable, practicable,

minimally troublesome, and constitutionally mandated step for Deputy Commissioner Rollyson to

demand that Mr. Boer search the Mercer County Clerk’s Office records anew in aid of providing

notice reasonably calculated to actually reach Ms. Smith before her property was spirited away by

the taxing authorities. Although that duty has not heretofore been imposed on Deputy

Commissioner Rollyson by statute or in any decision from the Supreme Court, our Court of

Appeals, or the Supreme Court of Appeals of West Virginia, the Court has little difficulty

concluding that due process requirement was, and in the future will be, essential. Inasmuch as Ms.

Smith was deprived of the process due her under the Fourteenth Amendment, the April 1, 2019,

tax deed granted by Deputy Commission Rollyson is void ab initio. Her heirs are thus free to

convey in the future that same title and associated warranties Ms. Smith held prior to the tax deed

being given to Mr. Boer by Deputy Commissioner Rollyson.

Moving to the second step in the qualified immunity analysis, the Court examines

whether the constitutional duty established today was “clearly established” on April 1, 2019. That

duty is understood as follows: a deputy commissioner, as a final step in the redemption notice

process, must require one seeking a tax deed to make a final search of the county tax records for

new address information of the previously unreachable owner. The Court must thus determine if

the contours of the aforementioned right were sufficiently clear on April 1, 2019, that a reasonable

official would have understood it and thus be chargeable in damages for failing to observe it.

As noted at the outset, the Supreme Court in Jones declined to provide the steps

one must take to satisfy due process under these circumstances. Id. at 234. “[I]t is not our

responsibility to prescribe the form of service that the government should adopt.” Id. (quoting

Greene v. Lindsey, 456 U.S. 444, 455 n. 9 (1982)) (cleaned up). Indeed, our Court of Appeals has

only opaquely held that when notice fails at the first effort, “‘consideration should be given to the

practicalities of the situation’ in each case.” Plemons, 396 F.3d at 573 (citing Tulsa Pro. Collection

Servs., Inc. v. Pope, 485 U.S. 478, 489–90 (1988)). The uncertainty respecting the process due is

compounded by Mullane, which “instructs that ‘all the circumstances’ of a case, including its

‘practicalities and peculiarities,’ must be considered in determining the constitutional sufficiency

of notice.” Id. (citing 339 U.S. at 314).

It is true that in an unpublished decision our Court of Appeals denied Deputy

Commissioner Rollyson qualified immunity when he issued a tax deed tainted by a notice failure.

O'Neal v. Rollyson, 729 F. App’x 254 (4th Cir. 2018). That case, however, is quite different than

this one. The circumstances in O’Neal are summarized as follows:

Rollyson does not dispute that he never informed the purchaser that the notices sent

to the designated post office box were returned or that he failed to send notice

addressed to “Occupant” as required by the statute. Rollyson further does not

dispute that, knowing that the attempted notices were unsuccessfully sent, he

transferred the Property deed to the purchaser anyway.

O'Neal, 729 F. App’x at 255. In this case, after the first round of mailings failed, Deputy

Commissioner Rollyson informed the tax lien purchaser of the notice failure and then, additionally,

required (1) more address information from the tax lien purchaser, and (2) directed attempts at

personal service, which ultimately failed. As the record reflects, he did so in an earnest effort to

comply with the unpublished decision in O’Neal. There is nothing in O’Neal that required him to

force Mr. Boer to undertake a renewed search of the Mercer County Clerk’s Office records. No

reasonable official in his position would thus have understood the decision in O’Neal to reach that

far.

The same is true of the Supreme Court of Appeals’ decisions in Mason v. Smith,

233 W. Va. 673, 760 S.E.2d 487 (2014), and Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988),

both of which having been decided under a now-repealed statutory scheme under which the Deputy

Commissioner of Forfeited and Delinquent lands had no notice obligations or conveyance

authority.

In view of the utter absence of direction respecting what was expected of a

reasonable deputy commissioner under the particular factual circumstances here presented, it is

important to take note of the extraordinarily forgiving nature of the qualified immunity rubric:

The doctrine of qualified immunity “balances two important interests -- the need to

hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” To that end, qualified immunity protects . . .

officers from personal liability for civil damages stemming from “bad guesses in

gray areas and ensures that they are liable only for transgressing bright lines.”

Because government officials cannot “reasonably be expected to anticipate

subsequent legal developments,” the right must have been clearly established at the

time an official engaged in a challenged action.

Santos v. Frederick Cnty. Bd. of Comm'rs, 725 F.3d 451, 468–69 (4th Cir. 2013).

In sum, a reasonable deputy commissioner confronted with the circumstances faced

by Deputy Commissioner Rollyson could not have been expected to forecast the duty here

imposed, which appears nowhere in the statute governing his authority nor decisional law. At most,

in not requiring Mr. Boer to return to the Mercer County Clerk’s Office, Deputy Commissioner

Rollyson made “a bad guess in a gray area” and certainly “transgressed” no “bright lines.” In the

legal landscape confronting him on the day he issued the deed to Mr. Boer, he in no way

“exercise[d]” his “power irresponsibly.” Consequently, he is entitled to qualified immunity.

Accordingly, the Court GRANTS Deputy Commissioner Rollyson’s Motion for

Summary Judgment on qualified immunity grounds.

III.

Accordingly, the Court GRANTS Deputy Commissioner Rollyson’s Motion for

Summary Judgment [ECF 47], to the extent he seeks qualified immunity and DENIES it without

prejudice as to its residue. The Court additionally DENIES as moot Plaintiffs’ Motion for

Summary Judgment.

Both the official and individual capacity claims having been adjudicated, it is

ORDERED that this case be, and hereby is, DISMISSED and STRICKEN from the docket.

The Clerk is directed to send a copy of this written opinion and order to counsel of

record and to any unrepresented party.

ENTER: May 9, 2024

ge Z Wu

Sa Frank W. Volk

i United States District Judge

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