97-402

 No. 97-402

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 45

EDWARD ISERN, a/k/a 

EDWARD H. ISERN, III, 

 Plaintiff and Appellant, 

 v.

KAREN SUMMERFIELD, a/k/a 

K. SUMMERFIELD, DACE HAWKINSON,

B & D PROPERTIES, DANIEL SUMMERFIELD

and TRACY SUMMERFIELD, 

 Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District, 

 In and for the County of Missoula, 

 Honorable Ed McLean, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 W. Carl Mendenhall, Worden, Thane & Haines, Missoula,

Montana

 For Respondents:

 James A. Bowditch, Milodragovich, Dale, Steinbrenner &

Binney, 

 Missoula, Montana

 

 Submitted on Briefs: January 15, 1998

 Decided: March 4, 1998

Filed:

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 __________________________________________

 Clerk

Chief Justice J. A. Turnage delivered the Opinion of the

Court. 

 

¶1 In this case, we reverse a decision of the Fourth

Judicial District Court, Missoula County, which upheld

the validity of a tax deed to real property.

¶2 The issue is whether defects in and omissions from

the statutory tax deed process as followed by Missoula

County and the Defendants and Respondents deprived

Missoula County of jurisdiction to issue the subject tax

deed and render the deed void.

¶3 In 1990, Edward Isern purchased a residence at 4217

Timberlane in Missoula, Montana. The full legal

description of the property is:

 Lot 9 in Block 6 of LINCOLNWOOD ADDITION NO.

 5, a platted subdivision in Missoula County,

 Montana, according to the official recorded

 plat thereof.

Isern failed to timely pay $787.38 in second half taxes

on the property for 1991.

¶4 Missoula County held a tax sale of the property in

July 1992. There were no bidders. Missoula County

continued to assess taxes against the property for the

years 1992, 1993, 1994, and 1995. On November 20, 1995,

upon payment to the county of $9,460.51 representing

delinquent taxes, penalties, interest, and costs, the

county assigned a tax sale certificate on the property to

"Dace Hawkinson-K Summerfield." On February 2, 1996, the

county issued a tax deed to "Dace Hawkinson & Karen

Summerfield."

¶5 Isern subsequently attempted to redeem the property

by tendering a check for the delinquent taxes, penalties,

and interest then due, but Missoula County refused to

accept his check. Isern filed this action in March 1996,

seeking to set aside the tax deed and to quiet title to

the property in himself based upon statutory defects,

omissions, and deficiencies in the tax deed process used. 

In addition to Hawkinson and Summerfield, Isern named as

defendants other persons or entities which he believed

might claim some right or title to the property. 

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¶6 Following discovery, the parties filed cross-motions

for summary judgment. The District Court denied Isern's

motion, and granted the Defendants summary judgment. 

Isern appeals.

Discussion 

 

¶7 Do defects in and omissions from the statutory tax

deed process as followed by Missoula County and the

Defendants and Respondents deprive the county of

jurisdiction to issue the subject tax deed and render the

deed void?

¶8 This Court's standard of review of a summary

judgment is the same as that initially employed by the

District Court--whether there exist genuine issues of

material fact, and, if not, whether the moving party is

entitled to judgment as a matter of law. See Rule 56(c),

M.R.Civ.P., and Estate of Strever v. Cline (1996), 278

Mont. 165, 170, 924 P.2d 666, 669. In this case, the

parties agree there are no issues of material fact.

¶9 Both Montana's Constitution and the Constitution of

the United States provide that no person shall be

deprived of property without due process of law. U.S.

Const. Amend. XIV, 1; Art. II, Sec. 17, Mont. Const. 

In a tax deed case, a citizen's right to own property is

challenged by the government and the assignee of a tax

sale certificate, almost always for a payment by the

assignee to the government of far less than the

property's full value. 

¶10 Notwithstanding the requirements of due process,

Defendants and Respondents cite Cullen v. Western

Mortgage & Warranty Title Co. (1913), 47 Mont. 513, 525,

134 P. 302, 305, for the proposition that it is not

necessary that tax deed proceedings "be criticised with

microscopic nicety" or that tax deeds be rejected for

"every insignificant departure from verbal precision." 

However, in more recent cases than Cullen, this Court has

firmly maintained the position that procedural

requirements set forth in tax deed statutes must be

strictly observed. See, e.g., Lowery v. Garfield County

(1949), 122 Mont. 571, 579, 208 P.2d 478, 483

("[a]pplication for a tax deed is a statutory proceeding

and every requirement of the statute must be fully

complied with"); Hudson v. McDonald (1987), 229 Mont.

426, 431, 747 P.2d 221, 224 ("[l]et the tax deed

applicant be aware of [the tax deed statutes], and let

him adhere to the letter thereof, particularly as to

description of the property, the content of the

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affidavits and notices, and the need for the

determination of occupancy"); Spain-Morrow Ranch, Inc. v.

West (1994), 264 Mont. 441, 447, 872 P.2d 330, 334 ("[i]n

recent decisions, we have required that the procedural

steps set forth in tax deed statutes be strictly

followed"). Even typographical errors in a document may

be sufficient grounds to set aside a resulting tax deed. 

Tax Lien Services v. Hall (1996), 277 Mont. 126, 133, 919

P.2d 396, 400. We here reaffirm our position that

because a property owner's fundamental interests are at

stake in tax deed proceedings, such proceedings demand

punctilious compliance with all statutory and procedural

requirements.

¶11 The first step in the tax deed process under

Montana's statutory scheme occurs on the third Monday of

December and the third Monday of June of each year, when

the county treasurer reports to the county clerk and

recorder a list of all persons and property then owing

taxes. Section 15-16-301, MCA. In Missoula County, the

elected offices of county treasurer and county clerk and

recorder have been combined into one office. No

delinquent list is made in Missoula County as is required

under § 15-16-301, MCA. Defendants and Respondents argue

that preparing reports as between the treasurer and the

clerk and recorder would be redundant and cost

prohibitive, where, as here, those offices have been

combined. However, failing to follow the statutes cannot

be justified by consolidation of elective offices. 

Notwithstanding consolidation of the offices, there still

remain two distinct office functions, separate from each

other, although administered by one elected county

official.

¶12 Continuing with the statutory tax deed process,

after the county clerk and recorder confirms the validity

of the delinquent tax list pursuant to § 15-16-305, MCA,

the county treasurer must publish or post a notice of

pending tax sale. The notice must comply with the

requirements set forth at § 15-17-122, MCA, and a copy

thereof must be filed with the county clerk pursuant to

§ 15-17-123, MCA. 

¶13 The method of conducting a tax sale is prescribed at

§ 15-17-211, MCA. Following the sale, and upon receipt

from the buyer of all delinquent taxes, penalties,

interest, and costs, the county treasurer is to prepare

a tax sale certificate containing the information listed

at § 15-17-212, MCA. The Missoula County clerk and

recorder/treasurer testified by deposition that she does

not prepare tax sale certificates for tax sales when

Missoula County is the buyer of the property. She did

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not prepare a tax sale certificate in this case. Nor did

Missoula County follow the alternative procedure

established at § 15-17-214, MCA, for county purchases of

tax deeds. That alternative procedure involves

production of a list of all property remaining unsold at

the tax deed sale. The Missoula County clerk and

recorder/treasurer did not produce such a list. 

Defendants and Respondents argue that "wasteful and

time-consuming paper copies" were "not necessary"

because the offices of clerk and recorder and treasurer are 

combined in Missoula County. Again, this argument does not

justify violation of statutory requirements.

¶14 The form for an assignment of a tax sale certificate

by the county to a payor of the amount of the delinquent

taxes, including penalties, interest, and costs, is

provided at § 15-17-323, MCA. The procedure for then

issuing a tax deed is set forth at Title 15, Chapter 18,

Part 2, MCA. The clerk and recorder must give notice of

the pending issuance of a tax deed, by certified mail,

return receipt requested, to each interested party at

"the address disclosed by the records in the office of

the county clerk." Section 15-18-212(4), MCA. In

applying a predecessor statute to § 15-18-212, MCA, this

Court has ruled that a county clerk and recorder must

seek addresses "easily ascertainable" in county records. 

Yellowstone Inv. and Dev. Co. v. Yellowstone County

(1982), 201 Mont. 290, 297, 654 P.2d 508, 512. 

¶15 In this case, the correct address of property owner

Isern was easily ascertainable from the records of

Missoula County. The county assessor's office had

received notice of Spokane, Washington addresses for

Isern in November 1994 and July 1995. The clerk and recorder/treasurer testified by deposition that the county

assessor's office should have provided the new addresses

to her office. She admitted that the most current

address was available to her by simply going across the

hall to the county assessor's office. Yet the clerk and

recorder/treasurer's office sent the notice of pending

issuance of a tax deed to Isern at his former Missoula,

Montana address on September 15, 1995, months after the

newer addresses were in the county's records.

¶16 Defendants and Respondents contend that under Moran

v. Robbin (1993), 261 Mont. 478, 863 P.2d 395, the

alleged defects attributable to Missoula County are not

relevant to the propriety of the issuance of a tax deed

to Hawkinson and Summerfield. Defendants and Respondents

claim that Missoula County's application for a tax deed

was abandoned and superseded by their actions in

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preparing and issuing the notice, proof of notice, and

application for tax deed. We disagree. In Moran, we

held that because the redemption dates provided in the

first notice and the second notice of pending tax deed

issuance differed, the second notice controlled and the

first notice was deemed abandoned. Moran, 261 Mont. at

483-84, 863 P.2d at 399. That holding does not translate

into a blanket removal of the requirement for strict

compliance with all tax deed statutes; it relates only to

multiple notices with different redemption dates. The

interpretation of Moran proposed by Defendants and

Respondents would wrongly allow counties and tax deed

applicants to totally ignore all prior statutory

requirements as long as the final notice was correct.

¶17 The form of a tax deed must be "in 

substance" as set forth at § 15-18-213, MCA. The 

form there providedincludes a statement that "the

property tax lien has notbeen redeemed by .......... (name of 

former owner) or anyother person entitled to redeem it."

Section 15-18-211(1), MCA, also requires that a tax deed must contain

"a statement that the property tax lien was not redeemed

during the redemption period provided in 15-18-111." The

tax deed issued in this case contains no language

whatsoever addressing this twice-repeated statutory

requirement.

¶18 Section 15-18-211(1), MCA, also requires that a tax

deed must contain the full legal description of the

property. The full legal description of the subject

property in this case is set forth above at paragraph 3. 

An abbreviated description of the property ("SUID #

1862006 Lincolnwood #5-Lot 9 Blk 6") was used in the tax

deed issued to Hawkinson and Summerfield. The tax deed

issued by Missoula County in this case did not contain

the full legal description as required under § 15-18-211(1), MCA. 

 

¶19 In Hudson, this Court set aside a notice of

application for a tax deed that included an improperly

abbreviated legal description and no identification of

the county where the property was located. We reasoned

that by failing to comply with statutory requirements the

published description was fatally defective. Hudson, 229

Mont. at 431, 747 P.2d at 223-24. The same reasoning

applies to a tax deed, particularly since § 15-18-211(1),

MCA, specifically requires the "full legal description"

in the tax deed. 

¶20 The District Court found, without detailed analysis,

that the procedural defects in this case were either

"minor clerical errors and/or non-substantive deviations

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of specific statutory language," or "internal operating

procedures and documentation of the County as a result of

the County's present computerized system of record

keeping." The court effectively concluded that none of

the defects affected Isern's due process rights. We

disagree. Our case law has established that tax deed

statutes must be strictly followed. Where, as here,

failure to follow statutory requirements has been clearly

established, we must conclude that due process rights

have been abridged. The argument that advances in

computerized record keeping justify deviation from the

procedures currently prescribed by statute is a matter

properly addressed not to this Court, but to the

Legislature, with proposals for statutory amendment. 

¶21 Given the requirement of strict compliance with

statutory procedures for issuing a tax deed, and without

passing judgment on the significance of other errors and

omissions cited by Isern but not discussed herein, we

hold that the errors and omissions discussed above void

the subject tax deed issued by Missoula County to Dace

Hawkinson and Karen Summerfield. We therefore reverse

the summary judgment entered by the District Court. This

case is remanded for further proceedings consistent with

this Opinion. 

 /S/ J. A. TURNAGE

We concur: 

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

Justice W. William Leaphart, dissenting.

¶22 Isern appeals to this Court asserting that Montana law requires strict

compliance with statutory requirements of the code in issuing tax deeds. This Court

has reasoned that 

 [s]trict compliance with the statutes is required because the owner

 risks losing his or her real property for the failure to pay the property

 taxes. Often, very valuable property is lost for a mere pittance. . . .

 "The proceedings are to a large extent ex parte, the owner is an

 unwilling party, is seldom, if ever, present at the sale, is generally

 ignorant of it, and the tax almost always bears a very small proportion

 to the value of the property sold. Upon these considerations it has

 generally been held that proceedings on tax sales should strictly

 comply with the statute."

Moran v. Robbin (1993), 261 Mont. 478, 482-83, 863 P.2d 395 (quoting Rush v.

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Lewis and Clark County (1908), 36 Mont. 566, 569, 93 P. 943, 944). However, this

policy must be considered in light of the State's interest in the effective 

collection of

property taxes.

¶23 As Respondents assert, Montana relies heavily on revenue received from real

property tax assessments. This revenue funds public schools, transportation, and

other expenditures necessary for effective operation of the county. To invalidate 

tax

deed proceedings on the purely technical grounds asserted by Isern eviscerates the 

tax

deed process and frustrates a county's ability to obtain necessary operational 

revenue.

¶24 The statutory procedure drafted by the legislature and set forth in Title 15

seeks to embody the protections of the United States and Montana Constitutions

which provide that no person shall be deprived of property without due process of

law. U.S. Const. amend. XIV, § 1; Mont. Const. Art. II, Sec. 17. Due Process in the

broad sense requires that "one deprived of his property must be given notice and an

opportunity to defend." Ball v. Gee (1990), 243 Mont. 406, 413, 795 P.2d 82, 86.

Title 15 sets forth a standard procedure that is designed to assure that a tax deed 

will

not issue unless the property owner has first been afforded due process of law.

¶25 The Court holds that "[w]here . . . failure to follow statutory requirements has

been clearly established, we must conclude that due process rights have been

abridged." However, I agree with Respondents that, in determining the validity of a

tax deed, the ultimate question to be resolved is whether the property owner (Isern)

was deprived of his property without due process of law. In other words, did the

slight deviations from the Title 15 procedure necessarily deprive Isern of his 

property

without due process of law? In blindly requiring strict compliance, the majority

ignores the fact that, despite technical discrepancies, Isern received due process, 

that

is, both notice and an opportunity to defend (to redeem). 

¶26 Realizing that the strict compliance rule essentially made the issuance of tax

titles impossible thereby hampering the state's ability to collect taxes, the Supreme

Court of Florida responded by characterizing some statutory tax deed provisions as

directory and some as obligatory depending on their due process ramifications. See

Dawson v. Saada (Fla. 1992), 608 So.2d 806. Likewise, Indiana requires strict

compliance with essential procedures, but allows substantial compliance with

procedures that do not effect due process rights. See Ind. Code § 6-1.1-25-16

(1997); see also Anton v. Davis (Ind. App. 1995), 656 N.E.2d 1180. This Court,

however, has strayed from its holding that "[e]very essential and material step

required by the tax deed statutes must be strictly followed," Moran, 863 P.2d at 398

(emphasis added) (citing Stanford v. Rosebud County (1991), 251 Mont. 128, 134,

822 P.2d 1074, 1077-78), in favor of a rule requiring strict compliance with all 

steps

of the statutory process.

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¶27 The Court, in support of its rule of absolute strict compliance, characterizes

Tax Lien v. Hall as standing for the proposition that even typographical errors in a

document may be sufficient grounds to set aside a resulting tax deed. In Hall, the

typographical error was in the description of the property in a published notice. In

invoking Hall, the Court fails to acknowledge that Hall was denied notice and thus,

due process, because the typographical error made it impossible to identify the

property. This is a stark contrast to the present case in which Isern has not 

alleged

prejudice or denial of his right to due process resulting from the "errors" in the 

tax

deed process. He alleges only that Respondents and the county failed to comply with

all the technicalities of the tax deed process irrespective of whether they affected 

his

rights to due process.

¶28 This Court has held that a critical element in the process of applying for a tax

deed is the giving of notice by the tax deed applicant to the owner of the real

property. We have held that " '[t]he giving of notice is jurisdictional; if the 

legal

requirements with respect to notice are not complied with, a county treasurer may not

legally issue a tax deed.' " Tax Lien v. Hall (1996), 277 Mont. 126, 133, 919 P.2d

396, 400 (quoting Moran, 863 P.2d at 398). Indeed, when this Court has determined

that failure to strictly comply with statutory procedures denies a county of 

jurisdiction

to issue a tax deed, the noncompliance has almost exclusively related to the failure 

to

provide the property owner with proper notice of her rights. 

¶29 The agreed facts in this case indicate that on September 15, 1995, the county,

in compliance with 15-18-212, MCA, sent notice of pending tax deed issuance to

Isern via certified mail and also published the notice in the Missoulian. This 

notice

stated that Isern's 36-month period of redemption had expired, notified Isern that 

his

60-day period of redemption would expire on November 14, 1995 and explained that

if Isern failed to redeem the property during that time a tax deed would issue. 

Isern

did not respond to the county's notice. Isern asserts that this notice was deficient

because the county did not send the notice to Isern's Spokane address. The Court

agrees, holding that the county had a duty to go across the hall to the to the county

assessor's office to obtain the Spokane address. However, as set forth below, 

Isern's

argument should fail as he was not denied notice or due process.

¶30 Summerfield purchased the county's tax lien on November 20, 1995 (5 days

after Isern's redemption period under the county's notice expired), and on November

28th Summerfield mailed a new notice of pending tax deed issuance to Isern pursuant

to § 15-18-212, MCA. This second notice indicated that Isern had yet another 60

days, until January 30, 1996, to redeem the property. This notice was sent via

certified mail addressed to Isern and "occupant" at the address of the subject 

property

in Missoula, to Isern at another listed Missoula address and to Isern's address in

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Spokane, Washington. Delivery was attempted three times (December 1, 6, and 16). 

The letter remained unclaimed and was returned to Summerfield on December 22nd. 

Isern's wife, however, acknowledged that she and Isern received post office

notification of certified letters at their Spokane residence, but refused to claim 

them.

¶31 As a result of Isern's failure to acknowledge service at any address of record,

Summerfield also elected to notify Isern of the pending tax deed issuance by

publication pursuant to § 15-18-212(5), MCA. On December 1st and 8th she

published a further Notice to Interested Parties of Pending Tax Deed Issuance in the

Missoulian and filed the additional notice with the clerk on December 29th. As a

result of Respondents' notices of issuance of tax deed (via certified mail and

publication), Isern received the benefit of an additional 60-day redemption period. 

Again, he did not choose to redeem the property. Accordingly, on January 31, 1996,

Summerfield submitted her application for tax deed to the county. The treasurer

issued a tax deed to Summerfield on February 2, 1996. Respondents and the county

followed the essential and material steps in applying for and issuing the tax deed.

¶32 The Respondents argue that the second notice was, in effect, an

"abandonment" of the county's notice and should control in accord with this Court's

decision in Moran. In Moran, the purchaser of a tax deed sent notice via certified

mail notifying the owner of the pending tax deed issuance. The purchaser elected 

also

to publish the notice. The second, published notice stated a later redemption date

than the first notice. This Court determined that the first, certified mail notice 

was

abandoned and the second, published notice and date of redemption controlled. 

Moran, 863 P.2d at 399. In the present case, the Court rejects Respondents' reliance

on Moran, stating: "That holding [Moran] does not translate into a blanket removal

of the requirement for strict compliance with all tax deed statutes; it relates only 

to

multiple notices with different redemption dates." I agree with Respondents that,

under Moran, the notice providing the more generous redemption date supersedes all

prior notices. However, even without Moran, Isern has failed to assert any damage,

prejudice or violation of due process as a result of the county's notice. Even 

assuming

that the county's notice was deficient, Respondents' subsequent notice gave Isern an

additional 60-day redemption period beyond that provided by the county's notice. 

Therefore, I would hold that the Respondents' notice, sent to three addresses of

record and published in the Missoulian, satisfied the requirements of § 15-18-212,

MCA, and gave sufficient notice to Isern of his right to redeem the property. Isern

has not alleged errors that deprived him of due process of law. He does not contest

the fact that Respondents sent him notice of the pending tax deed at his Spokane

address and that he had more time than allotted by the county's notice to redeem the

property. He asserts only clerical errors that were not of a jurisdictional nature 

and

did not deny him of notice or an opportunity to defend or redeem.

¶33 The Court has taken the strict compliance analysis to a new level by voiding

a tax deed absent any showing of the slightest prejudice or denial of due process of

law. The result is that a property owner who shirks his tax obligations and thwarts

notice by actively avoiding his certified mail may later reclaim the property by 

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finding

any insignificant typographical or clerical error.

¶34 I would affirm the District Court's holding that the numerous errors cited by

Isern were nothing more than insignificant clerical errors and slight procedural

deviations which did not deny Isern due process of law. 

 /S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler joins in the foregoing dissenting opinion of Justice W.

William Leaphart.

 /S/ TERRY N. TRIEWEILER

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