Thornton Mellon v. Frederick Cnty. Sheriff ( 2021 )

Thornton Mellon, LLC v. Frederick County Sheriff, et al., Nos. 2224, 2330, 2580,
September Term 2019, No. 151, September Term 2020
Opinion by Friedman, J.
SHERIFFS—IMPLIED POWERS
When the General Assembly, the Court of Appeals, or the common law grants the sheriff
an express power, or gives the sheriff an express duty, the sheriff may also exercise those
powers that are fairly implied to fulfill that express power or duty. The sheriff’s exercise
of those implied powers must be reasonable, neither arbitrary nor capricious, and consistent
with the act being administered and relevant law.
Circuit Court for Frederick County,
Baltimore County, Anne Arundel County,
And Howard County
Case Nos. C-10-CV-18-00976,
03-C-18-011990, C-02-CV-19-002613,
and C-13-CV-19-001149.
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
CONSOLIDATED CASES
___________________________________
Nos. 2224, 2330, 2580
September Term, 2019
___________________________________
No. 151
September Term, 2020
___________________________________
THORNTON MELLON, LLC, ET AL.
v.
FREDERICK COUNTY SHERIFF,
BALTIMORE COUNTY SHERIFF, ANNE
ARUNDEL COUNTY SHERIFF, ET AL.,
AND HOWARD COUNTY SHERIFF
___________________________________
Berger,
Nazarian,
Friedman,
JJ.
___________________________________
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Opinion by Friedman, J.
2021-09-03 ___________________________________
12:36-04:00
Filed: September 3, 2021
Suzanne C. Johnson, Clerk
After foreclosing on and securing the deed to a property through the tax sale process,
a purchaser of a tax sale certificate is entitled to a writ of possession. The writ of possession
directs the sheriff to place the tax sale purchaser in possession of the property that they
now own. In several counties, the sheriff has adopted policies for how they will serve writs
of possession for tax sale purchasers. These consolidated cases ask us to consider whether
the sheriffs can adopt and enforce these policies, or whether by doing so, the sheriffs have
exceeded the bounds of their express and implied authority.
FACTS
Under Maryland law, unpaid real property taxes constitute a lien on that property.
MD. CODE, REAL PROP. (“RP”) § 14-804 (b)(1). To collect the amount due in delinquent
property taxes,1 the tax collector in each county conducts a yearly tax sale, where the
county’s lien is sold to the highest bidder. RP §§ 14-808(a)(1);14-817(a)(2). The highest
bidder is awarded a tax sale certificate. RP § 14-820(a). After the tax sale, the homeowner
who has failed to pay their property taxes still owns the property, but has a limited amount
of time to satisfy the debt they now owe to the holder of the tax sale certificate. RP § 14-
820(a)(7). If that debt is not satisfied within the time provided, the holder of the tax sale
certificate has the right to foreclose on the homeowners’ right to redeem their property. Id.
In effect, the holder of the tax sale certificate buys the county’s right to collect the debt of
1
The tax sale mechanism is also used to collect “other unpaid charges owed to the
City, all of which are liens against the real property.” See Tax Sale Information
https://perma.cc/49AS-LSAH.
unpaid taxes, and either collects the debt formerly owed to the county or becomes the new
owner of the property. RP § 14-844(a). The purchaser of the tax sale certificate owns the
county’s lien. They can collect fees related to the tax sale and can charge interest to the
property owner. Because the interest and fees owed will accumulate over time, the longer
a homeowner waits to redeem the property, the more expensive it will be.
After a foreclosure judgment is entered, the tax sale purchaser is issued a deed to
the property, and the prior owner’s claim to the property is extinguished. RP § 14-847.
With the foreclosure judgment, the tax sale purchaser is entitled to a writ of possession.
RP § 14-850. The writ of possession, issued by the clerk of the court where the foreclosure
judgment was entered, directs the sheriff to place the new owner in possession of the
property. MD. R. 2-647. A tax sale purchaser would only seek a writ of possession when a
newly owned property remains occupied by someone who, prior to the foreclosure
judgment, had an ownership interest in the property and used the property as their primary
residence. RP § 7-105.1(8).2
Maryland Rule 2-647 sets forth the process by which a tax sale purchaser enlists the
sheriff’s assistance in delivering possession of their newly acquired property:
Upon the written request of the holder of a judgment awarding
possession of property, the clerk shall issue a writ directing the
sheriff to place that party in possession of the property. The
request shall be accompanied by instructions to the sheriff
2
This year, the General Assembly passed, and the Governor approved, legislation
“[a]uthorizing the governing body of a county or municipal corporation to withhold owner-
occupied residential property from tax sale during the period from June 1, 2021, through
June 30, 2023; and providing for the termination of the Act on June 30, 2023.” Acts of Md.
2021, ch. 75. That legislation is not at issue in these cases.
2
specifying (a) the judgment, (b) the property and its location,
and (c) the party to whom the judgment awards possession. The
clerk shall transmit the writ and the instructions to the sheriff.
When a judgment awards possession of property or the
payment of its value, in the alternative, the instructions shall
also specify the value of the property, and the writ shall direct
the sheriff to levy upon real or personal property of the
judgment debtor to satisfy the judgment if the specified
property cannot be found. When the judgment awards
possession of real property located partly in the county where
the judgment is entered and partly in an adjoining county, the
sheriff may execute the writ as to all of the property.
MD. R. 2-647.
Appellant Thornton Mellon, LLC is a tax sale purchaser.3 The clerks of the several
circuit courts often issue writs of possession directing the sheriffs to place Thornton
3
Our case law describes tax sale purchasers as performing a public service. See,
e.g., Deinlein v. Johnson, 201 Md. App. 373, 381 (2011) (“Tax sales serve as a mechanism
for local government to collect unpaid property taxes.”); Heartwood 88, Inc. v.
Montgomery Cty., 156 Md. App. 333, 364 (2004) (“ … tax sale purchasers are regarded as
performing a public service[.]”). And that’s true. Tax sale purchasers perform a public
service by collecting delinquent property taxes at minimal cost to the local government.
But the tax sale mechanism comes at considerable risk and expense to the delinquent
homeowner—risk of losing title to one’s home and having to pay interest and fees to
redeem the property, in addition to the money owed to the local taxing authority. See, e.g.,
JOAN JACOBSON, THE STEEP PRICE OF PAYING TO STAY: BALTIMORE CITY’S TAX SALE,
THE RISKS TO VULNERABLE HOMEOWNERS, AND STRATEGIES TO IMPROVE THE PROCESS,
(Abell Foundation, October 2014). For the delinquent homeowner, the tax sale mechanism
is a costly method of debt collection. And, it is worth noting, it is a form of debt collection
that lacks many of the debtor protections that are the hallmark of modern consumer
protection regimes. Worse still, this burden falls hardest on the poor and the elderly. Id. at
3. Nevertheless, tax sale purchasers have a right to participate in this market, and to engage
in sharp business practices, at least until a court constrains those practices. See, e.g.,
Thornton Mellon, LLC v. Adrienne Dennis Exempt Trust, 250 Md. App. 302 (2021), cert.
granted, ___ Md. ___ (2021) (reporting that tax sale purchaser faxed homeowner
misleading documents to cause her to miss a deadline and be liable for additional attorneys’
fees). And, as here, Thornton Mellon may try to persuade a court to force the sheriffs’
offices to make the tax sale purchaser’s job easier or cheaper. Thornton Mellon is also
entitled to name its entities howsoever it wishes. But we do not fail to notice that they have
3
Mellon—or whichever entity to which it assigns the foreclosure judgment 4—in possession
of the properties that it has come to own through the tax sale process.
The sheriffs in Frederick County, Baltimore County, Anne Arundel County, and
Howard County have adopted a set of policies for serving writs of possession. The parties
have agreed to call these policies the mover policy, the weather policy, and the 60-day
policy. Under the mover policy, tax sale purchasers must provide movers and a moving
van to take away the personal items belonging to the prior owner, which at the time of the
service of the writ, remain inside the property. If a sufficient number of movers and a
moving van are not provided, the sheriffs will not serve a writ of possession. Under the
weather policy, the sheriffs have discretion to cancel or reschedule the service of a writ of
possession during inclement or unsafe weather conditions. Under the 60-day policy, the
sheriffs will not serve a writ of possession that is more than 60 days old.
In Anne Arundel County, the sheriff’s office refused to serve a writ of possession
after Thornton Mellon failed to provide a sufficient number of movers. In Frederick
County, the sheriff’s office cancelled service of a writ due to inclement weather. In
Baltimore County, the sheriff’s office refused to serve a writ that was more than 60 days
chosen to conduct their business under the names of, among others, the “crass, unpolished”
self-made millionaire from the film Back to School, see Nina Darnton, Film: ‘Back to
School,’ With Rodney Dangerfield, N.Y. TIMES, June 13, 1986, and the “boorish real estate
developer” from the film Caddyshack. See Gene Siskel, ‘Caddyshack’ Right on Course as
a Low-Budget Laugher, CHI. TRIB., July 29, 1980.
4
Thornton Mellon has related entities named Al Czervick, Danny Noonan, and Ty
Webb. The record does not disclose the relationship among and between these entities or
the functions that they are designed to fulfill on the organizational chart. For the purposes
of the appeal, we shall refer to them all by the name of the lead plaintiff, Thornton Mellon.
4
old. Thornton Mellon filed complaints for declaratory judgment and injunctive relief
against each of the sheriffs, in the circuit court for each county. Thornton Mellon’s
complaints argued that the sheriffs lacked a legal basis to adopt and enforce the three
polices, and that the policies were unconstitutional. Anticipating similar treatment by the
sheriff in Howard County, Thornton Mellon’s affiliate Al Czervik sued the Howard County
sheriff for the same injunctive and declaratory relief.
The sheriffs each moved to dismiss the respective complaints, and in the alternative,
moved for summary judgment. Each of the circuit courts determined that there were no
disputes of material fact, found that the sheriffs had the authority to adopt and enforce these
policies, found that these policies were legally valid, and each granted summary judgment
in favor of the sheriffs. Thornton Mellon noted a timely appeal in each of the cases. We
consolidated the four cases for our convenience, heard all four together, and now issue this
opinion in all four cases.
ANALYSIS
I. POWERS “FAIRLY IMPLIED”
In Maryland, when a state or local public official is granted an express power or
given an express duty, that power or duty carries with it those fairly implied powers
incident to exercising or fulfilling the power or duty. See, e.g., Town of LaPlata v. Faison-
Rosewick, LLC, 434 Md. 496, 523 (2013); Thanner Enterprises, LLC v. Baltimore Cty.,
414 Md. 265 (2010); Tidewater/Havre de Grace, Inc. v. Mayor and City Council of Havre
de Grace, 98 Md. App. 218 (1993). The scope of these implied powers is “liberally
construed.” Thanner, 414 Md. at 279. A government official or agency, however, may not
5
act in a way that is “inconsistent or out of harmony with, or which alters, adds to, extends
or enlarges, subverts, impairs, limits, or restricts the [statutory] act being administered.”
Bd. of Liquor License Comm’rs for Baltimore City v. Hollywood Prods., Inc., 344 Md. 2,
11 (1996) (quoting Ins. Comm’r v. Bankers Independent Ins. Co., 326 Md. 617, 624
(1992)). A public official’s interpretation of how to accomplish a statutory directive should
“be given great deference unless it is in conflict with legislative intent or relevant decision
law, or is clearly erroneous, arbitrary or unreasonable.” Dep’t. of Economic & Employment
Dev. v. Lilley, 106 Md. App. 744, 762 (1995) (cleaned up). The exercise of fairly implied
powers must be reasonable, and neither arbitrary nor capricious. Harvey v. Marshall, 389
Md. 243, 303 (2005). There are cases attributing these fairly implied powers to all manner
of officials in Maryland. See, e.g., Comptroller of the Treasury v. Two Farms, Inc., 234
Md. App. 674 (2017) (holding that Comptroller had implied authority to suspend a cigarette
license); Maryland Ins. Comm’r v. Central Acceptance Corp., 424 Md. 1, 34-5 (holding
that Insurance Commissioner, “despite the absence of an express authorization or power,”
had implied authority to issue enforcement orders); Comptroller of the Treasury v.
Washington Restaurant Group, Inc., 339 Md. 667, 670 (1996) (holding that the
Comptroller could enforce a state tax lien through a writ of execution); McCullough v.
Wittner, 314 Md. 602, 610-11 (1989) (holding that the Secretary of Public Safety and
Correctional Services had implied authority to make monetary awards to aggrieved
inmates).5
5
The Court of Appeals, and this Court, have recognized that administrative and
municipal bodies have the same sort of implied authority to act in ways that further their
6
Our courts have not previously applied the fairly implied powers doctrine to sheriffs.
We understand Thornton Mellon to argue that because the courts haven’t yet applied this
doctrine to sheriffs, courts should refuse to do so.6
Sheriffs hold a unique place in Maryland law. Sheriffs were originally colonial
officials appointed by the royal governor. Jonathan W. Acton, II, The Maryland Sheriff v.
Modern and Efficient Administration of Justice, 2 U. BALT. L. REV. 282, 285 (1972). As
the United States Supreme Court described the duties of the Maryland sheriff during the
colonial period:
In his judicial capacity, [the sheriff] formerly held … the
county courts, and performed other [related] functions…. As
the King’s bailiff, he seized to the King’s use all escheats,
forfeitures, [homeless persons, wandering animals without
owners, and goods from a shipwreck that washed ashore] ….
As conservator of the peace … he is the representative of the
King, or sovereign power of the state for that purpose. He has
the care of the county, and though forbidden … to act as a
justice of the peace in trial of criminal cases, he exercises all
the authority of that office where the public peace was
concerned. He may upon view, without writ or process,
commit to prison all persons who break the peace or attempt to
statutory directive, and are not otherwise inconsistent. See, e.g., Town of La Plata, 434 Md.
at 525 (holding that town manager had implied authority to adopt procedures to verify
signature on a petition for referendum); City of Frederick v. Pickett, 392 Md. 411 (2006)
(holding that City of Frederick had the implied authority to condemn individual blighted
properties within a non-blighted area); Tidewater/Havre de Grace, Inc., 98 Md. App. at
224 (holding that Town of Havre de Grace had implied authority to adopt a particular
ordinance assessing user fees for dock slip usage); Subsequent Injury Fund v. Ehrman, 89
Md. App. 741, 752 (1992) (holding that the Subsequent Injury Fund had the implied
authority to raise issues of accidental injury and causal connection); Maryland Port Admin.
V.C.J. Lagenfelder & Son, Inc., 50 Md. App. 525, 546 (1982) (holding that Board of
Contract Appeals had the implied authority to award post-decision interest).
6
But see, infra n.9 (identifying cases holding that sheriffs may exercise discretion
in performing certain functions).
7
break it; he may award process of the peace, and bind anyone
in recognizance to keep it…. In his ministerial capacity he is
bound to execute all processes issuing from the courts of
justice. He is keeper of the county jail, and answerable for the
safekeeping of prisoners. He summons and returns juries,
arrests, imprisons, and executes the sentence of the court.”
South v. Maryland, 59 U.S. 396, 401-02 (1855).
After the United States declared its independence from Great Britain, the offices of
sheriff were converted to democratically elected officials. MD. CONST. (1776), Art. XLII
(“That Sheriffs shall be elected in each county, by ballot, every third year.”). Today, the
duties of the sheriff are set out in the Maryland Constitution, MD. CONST., Art. IV, § 44,
and in Title 2, subtitle 3 of the Courts Article of the Maryland Code. MD. CODE, CTS. &
JUD. PROC. (“CJ”) § 2-301, et seq. “Absent a statutory provision or rule of [the Court of
Appeals] explicitly abrogating a sheriff’s [common law] duty … the common law duty
continues[.]” Prince George’s Cty. v. Aluisi, 354 Md. 422, 439 (1999). The modern-day
sheriffs perform a mixture of functions including courthouse security, service of writs and
warrants, sheriff’s sales, and law enforcement in some of our more rural counties. Sheriffs
hold a unique position that straddles the line between State and local government. As the
Court of Appeals explained in Rucker v. Harford Cty., some of the sheriff’s duties are State
duties, and others are local. 316 Md. 275 (1989) (holding that torts committed by sheriffs
in their local capacity are governed by Local Government Tort Claims Act and that torts
committed by sheriffs in their State capacity are governed by Maryland Tort Claims Act).
Similarly, sheriffs are in a unique position within State government, operating in the
interstices between the judicial, executive, and legislative branches. The Maryland
8
Constitution places sheriffs in Article IV, which concerns the judicial department. Most
officers described in Article IV are judges, but there are other, court-related, nonjudicial
officers discussed in that Article, including Sheriffs, Clerks of the Circuit Courts, and the
Registers of Wills. MD. CONST., Art. IV, §§ 44, 25, 41.7 Nevertheless, sheriffs, unlike all
other Article IV actors, perform some executive functions. See Soper v. Montgomery Cty.,
294 Md. 331, 336-37 (1982) (holding that the sheriffs’ law enforcement duties are
executive in nature). But sheriffs are also specifically prohibited from promulgating
regulations pursuant to the State administrative procedures act because they are not part of
the executive branch. MD. CODE, STATE GOV’T (“SG”) § 10-102(b)(2). The sheriffs in
Maryland truly have a foot in each world: ancient and modern; State and local; executive
and judicial.8
Although the sheriffs are unique in many ways, we see no reason, and Thornton
Mellon has not offered one, why the sheriffs would not be entitled to the same fairly
implied powers to which all other public officials are entitled.9 We hold, therefore, that the
7
Notaries public are also recognized in Article IV. MD. CONST., Art. IV, § 45. But
notaries public are not governmental actors and not relevant to this analysis. SG § 18-101,
et seq.
8
We also note that candidates for sheriff run for office in partisan elections. As
such, the candidates for that office are urging the voters to vote for them because, they say,
they will conduct the duties of the office in a manner consistent with a governing
philosophy. It would be inconsistent with these partisan elections for us to hold that such
elected officials have no discretion in the manner in which they conduct their duties.
9
In a related context, the Court of Appeals has held that when performing their
courthouse security function, the sheriff had the discretion to keep a criminal defendant in
leg-iron restraints during the trial after concluding that the defendant was an escape risk.
Bowers v. State, 306 Md. 120, 138 (1986) (“The sheriff was vested with responsibility here.
In the course of the discharge of his responsibilities his office made a decision.”). The
9
same analysis applies—when sheriffs are granted an express power or given an express
duty, by the General Assembly, the Court of Appeals, or the common law, they are also
given all powers that are fairly implied to exercise or fulfill that express power or duty.10
II. THE POLICIES HERE
As described above, each of the sheriffs adopted a mover policy, weather policy,
and a 60-day policy. Thornton Mellon challenged whether the sheriffs had the authority to
adopt each policy. The circuit courts each found that the sheriffs had the authority to adopt
the policies, and each granted summary judgment for the sheriffs. On appeal, Thornton
Mellon argues that the sheriffs lacked the authority to adopt the three policies, and as a
backup position, that the grants of summary judgment were erroneous because there
remained genuine disputes over material facts. We, therefore, must look at the express
power granted to the sheriffs, and the policies they adopted to execute that express power,
to determine whether the policies are within their fairly implied powers.
The express grant relative to each of these policies is found in CJ § 2-301(a), which
provides simply that “the sheriff shall serve all papers directed to him according to their
Court of Appeals has also held that, when conducting a sheriff’s sale, the sheriff has “a
certain amount of discretion in conducting execution sales … [that] must be fairly and
impartially exercised.” Buckeye Dev. Corp. v. Brown & Shilling, Inc., 243 Md. 224, 230
(1966) (cleaned up); see also McCartney v. Frost, 282 Md. 631, 638 (1978) (sheriff is
“vested with sound discretion” when selling property at a sheriff’s sale).
10
Our holding today is also consistent with how, for example, the Wisconsin
Supreme Court has recognized the implied authority of Wisconsin sheriffs to determine the
means by which they fulfill their duties. Washington Cty v. Washington Cty. Deputy
Sheriff’s Ass’n, 531 N.W.2d 468, 472 (Wisc. 1995) (“If the duty is one of those immemorial
principal and important duties that characterized and distinguished the office of sheriff at
common law, the sheriff chooses the ways and means of performing it.”).
10
instructions, within the time set by the court.” That express power is also effectuated by
Maryland Rule 2-647, which states that, “[u]pon the written request of the holder of a
judgment awarding possession of property, the clerk shall issue a writ directing the sheriff
to place that party in possession of the property.” MD. R. 2-647.
A. The Mover Policy
The sheriffs in Frederick County, Baltimore County, Anne Arundel County, and
Howard County have each adopted a mover policy that requires a tax sale purchaser to
provide, at the time of service of the writ of possession, a crew of movers and moving
equipment sufficient to remove the prior owner’s personal property that remains inside the
property.11 The mover policy requires the tax sale purchaser to remove the prior owner’s
personal property to the nearest public right-of-way. Thornton Mellon would prefer to
merely change the locks at the time of service of the writ of possession and arrange to
dispose of the prior owner’s personal property at a later date, and in a separate manner.
We begin by noting that, in our view, there is nothing about the mover policy that
is “inconsistent or out of harmony with, or which alters, adds to, extends or enlarges,
subverts, impairs, limits, or restricts the [statutory] act being administered.” Hollywood
Prods., Inc., 344 Md. at 11. The mover policy does not, in any way, undermine the sheriffs’
duty to “serve [the writ of possession] according to [its] instructions, within the time set by
11
Specifically, the policy requires a moving crew consisting of 8 persons for 1-2
bedroom apartment; 10 persons for a 3 bedroom apartment; 10-12 persons for a townhouse;
12-15 persons for a single family house; 15-25 persons for a retail business; a locksmith;
necessary moving equipment; a truck; tools for disassembling personal property; and
plastic bags for clothing and other small items.
11
the court.” CJ § 2-301(a). The mover policy merely requires the tax sale purchaser to arrive
ready to undertake its part of the process.
The sheriffs also point out that the mover policy is effectively identical to the
process required by statute when sheriffs serve writs of restitution to evict tenants on behalf
of and at the request of landlords.12 While the General Assembly may have chosen not to
require that the sheriffs do the same with respect to a writ of possession, we see nothing
arbitrary or capricious in the sheriffs choosing to serve writs of possession and warrants of
restitution in a similar manner.
Thornton Mellon argues, however, that the mover policy increases its costs and
provides a disincentive for participation in the tax sale process, and is thus inconsistent
with the tax sale process as a whole. We are not convinced. Despite the mover policy, the
tax sale process continues unabated. The tax sale certificate is issued, the taxing authority
collects the amount due in delinquent taxes, and the tax sale purchaser is either reimbursed
(with interest) or receives a deed, free and clear, to the property. Although there is an
additional cost to the tax sale purchaser associated with the mover policy, we are not
12
The statute governing writs of restitution requires the sheriff to:
[C]ause the landlord to have again and repossess the property
by putting the landlord (or the landlord's duly qualified agent
or attorney for the landlord’s benefit) in possession thereof,
and for that purpose to remove from the property, by force if
necessary, all the furniture, implements, tools, goods, effects
or other chattels of every description whatsoever belonging to
the tenant, or to any person claiming or holding by or under
said tenant.
RP § 8-401(d)(1)(i) (emphasis added).
12
persuaded (and the summary judgment record doesn’t support) that this cost is a
disincentive to would-be tax sale purchasers generally.13
At bottom, however, is the question of what is to become of the prior owner’s
personal property? The sheriffs argue that it should be moved out to the nearest public
right-of-way. Thornton Mellon argues that it should be allowed to change the locks, keep
the prior owner’s personal items locked inside the new property, so that the prior owner
can arrange to come pick them up later, or so that Thornton Mellon can dispose of the items
at its convenience. We cannot say which is the better, nicer, or more humane policy, or
which policy will result in more personal items being retrieved by the prior owner and
which policy will keep the personal items in better condition. We recognize, however, that
the choice between these potential policies is in the sheriffs’ discretion—not ours—and we
cannot say that the choices that the sheriffs of Frederick County, Anne Arundel County,
Howard County, and Baltimore City made, were arbitrary or capricious.14 We hold,
13
The existence of these policies did not dissuade Thornton Mellon from
participating in the tax sale process. After filing its Amended Complaint against the sheriff
in Frederick County contesting the validity of the mover, weather, and 60-day policies,
Thornton Mellon went on to participate in the 2019 tax sale in Frederick County, and, it
appears, purchased the tax sale certificates for 303 properties. See, 2019 Frederick County
Tax Sale Report (May 24, 2019) https://perma.cc/FBL7-8H9A.
14
The sheriffs also argue that they fear tort liability in lawsuits for the conversion
of personal property brought by the prior owners. We take no position on the merits of such
a lawsuit, or the defenses to it that the sheriff may have, but avoidance, especially on the
advice of counsel, of unsettled, potential liability is a rational, not arbitrary basis for
decision-making.
13
therefore, that adopting a mover policy like the one described here is a valid exercise of
the sheriffs’ fairly implied power.
As noted above, Thornton Mellon proffers, as a backup argument, that summary
judgment was inappropriate because the sheriffs submitted the same affidavit, executed by
a then-Acting Lieutenant of the Anne Arundel County Sheriff’s Office (the “Andre
affidavit”) that describes only the Anne Arundel County mover policy. Thornton Mellon
argues that each sheriff in each separate jurisdiction should have executed an affidavit
describing the mover policies adopted in each jurisdiction. But Thornton Mellon makes no
allegation that the mover policies enacted and enforced in each of the counties are
substantially or materially different from one another. The substance of the mover policy,
as it exists in each county, was clear. Thornton Mellon alleged that the sheriffs enforced it,
and the sheriffs admitted that they enforced it. The validity of the mover policy was,
therefore, appropriate for summary judgment.
B. The Weather Policy
The sheriffs have also adopted a policy whereby they may decline to serve a writ of
possession during bad weather. There is nothing facially inconsistent between such a policy
and the express statutory grant of authority in CJ § 2-301(a). The sheriffs justify the need
for such a policy on their decision to maintain consistency with the service of writs of
restitution, which have a statutory exception to forestall service in “extreme weather
conditions,”15 and to prevent placing the previous owner’s personal property at the nearest
15
RP § 8-401(d)(2)(i). We note that with regard to service of writs of restitution,
cessation requires an order of the administrative judge, whereas application of the sheriffs’
14
public right-of-way during extreme weather, which the sheriffs describe as “inhumane,
dangerous, and/or impractical.” This seems obvious to us. Of course, the sheriffs may
decline to serve writs of possession during inclement weather, and adopt a policy that says
they may do so. The adoption of the weather policy is a valid exercise of the sheriffs’ fairly
implied power.
As before, Thornton Mellon argues that the case was not appropriate for summary
judgment because, it says, there remained genuine disputes of material fact. Thornton
Mellon specifically complains that the weather policy is not sufficiently clear, because it
does not know the specific weather conditions that trigger the policy, and because the
sheriffs have described the weather policy differently than Thornton Mellon did. Thornton
Mellon alleged that the sheriffs “refuse[d] to serve writs during months when the weather
was poor.” The sheriffs, however, described the weather policy as the discretion to refuse
to execute writs of possession “when extreme weather conditions are present,” or “a
practice whereby writs are not served when the County government and courthouses are
closed due to inclement weather.” This is not a genuine dispute of material fact. This is a
dispute about the language used to describe the weather policy. We hold that the sheriffs
have, as part of their fairly implied powers, the authority to determine when weather
conditions preclude service of writs of possession.
inclement weather policy is decided exclusively by the sheriff. We are not persuaded that
this distinction is important for our evaluation.
15
C. The 60-Day Policy
Finally, the sheriffs have adopted a policy of refusing to serve tax sale purchasers
writs of possession that are more than 60 days old. We understand that the sheriffs consider
these writs to be “stale” and require the tax sale purchaser to request that the clerk of the
circuit court that issued the now-“stale” writ, to issue a new writ before the sheriff will
serve it.
We hold that the 60-day policy is inconsistent with statutory law and the Maryland
Rules, therefore, the adoption of the 60-day policy is not a valid exercise of the sheriffs’
fairly implied power. A writ of possession issued to a tax sale purchaser cannot, and indeed
does not, expire. When the clerk issues the writ of possession upon request of the tax sale
purchaser, the tax sale purchaser has necessarily completely foreclosed the prior owner’s
right to redeem the property. The prior owner can do nothing at that point to reestablish a
right to redeem.16 MD. CODE, TAX-PROP. (“TP”) § 14-827 (In a tax sale, “[t]he owner or
other person that has an estate or interest in the property sold by the collector may redeem
the property at any time until the right of redemption has been finally foreclosed under the
provisions of this subtitle.”) (emphasis added); Mayor and City Council of Baltimore v.
Thornton Mellon, LLC, 249 Md. App. 231, 239 (2021) (“The delinquent property owner
may redeem the property ‘at any time until the right of redemption has been foreclosed by
16
Of course, the prior owner can purchase the property from the tax sale purchaser
under whatever terms are mutually agreeable. We are not aware if this ever happens or that
such negotiations are the reason that Thornton Mellon has allowed a writ to sit for more
than 60 days.
16
paying the required sum to the collector, who then transfers the money to the tax sale
purchaser in exchange for the tax sale certificate.’”) (emphasis added). Thus, if a tax sale
purchaser allows the prior owner to remain in the property, that is entirely up to the tax sale
purchaser. No matter how long a tax sale purchaser sits on a writ of possession before
seeking to have it served by the sheriff, the prior owner has no opportunity to reestablish a
legal interest in the property.17
Because the 60-day policy invalidates otherwise valid writs of possession, we hold
it to be invalid. See Lilley, 106 Md. App. at 762. Specifically, we hold that the trial court
was correct in finding that there were no genuine disputes of material fact, but that the court
erred in finding that the sheriffs were entitled to judgment as a matter of law. To the
contrary, Thornton Mellon was entitled to judgment as a matter of law. We, therefore,
reverse the grant of summary judgment and remand each case to the various circuit courts
from which they originated to enter a declaration of rights consistent with this opinion.
CONCLUSION
We hold that when sheriffs, like other public officials, are granted express duties by
statute or rule, they may also exercise any additional power that is fairly implied, so long
17
Although we have earlier approved of the sheriffs’ analogies of writs of
possession in the tax sale context, to writs of restitution in the landlord tenant context, see
supra II.A and II.B, the analogy is inapposite with respect to the 60-day policy. Writs of
restitution expire sixty days from the date of issuance, RP § 8-401(d)(iii)(1), because
circumstances may change. A tenant facing eviction has the right to redeem their interest
in the leased premises “at any time before actual execution of the eviction order.” RP § 8-
401(e)(1). As discussed above, when a writ of possession is issued, the process of
transferring ownership to the tax sale purchaser is complete, and the prior owner has no
right to redemption.
17
as it does not conflict with legislative intent or relevant decisional law, and is neither clearly
erroneous, arbitrary, or unreasonable. The sheriffs’ mover policy and weather policy are
consistent with legislative intent and relevant decisional law, and are not clearly erroneous,
arbitrary, or unreasonable, and are thus valid. We, therefore, affirm summary judgment as
to those policies. The sheriffs’ 60-day policy is inconsistent with legislative intent and
relevant decisional law, and is therefore clearly erroneous. As a result, the 60-day policy
exceeds the sheriffs’ fairly implied powers and is invalid. As to that policy only, summary
judgment is reversed and the cases remanded to the various circuit courts to enter a
declaration of rights, pursuant to CJ § 3-409, consistent with this opinion.
IN CASE NO. 2224 OF SEPTEMBER
TERM 2019, JUDGMENT OF THE
CIRCUIT COURT FOR
FREDERICK COUNTY AFFIRMED
IN PART, REVERSED IN PART,
AND REMANDED FOR THE
CIRCUIT COURT TO ENTER A
DECLARATION OF RIGHTS
PURSUANT TO CJ § 3-409
CONSISTENT WITH THIS
OPINION. TWO-THIRDS OF COSTS
TO BE PAID BY APPELLANTS,
ONE-THIRD BY APPELLEES.
IN CASE NO. 2330 OF SEPTEMBER
TERM 2019, JUDGMENT OF THE
CIRCUIT COURT FOR
BALTIMORE COUNTY AFFIRMED
IN PART, REVERSED IN PART,
AND REMANDED FOR THE
CIRCUIT COURT TO ENTER A
DECLARATION OF RIGHTS
PURSUANT TO CJ § 3-409
CONSISTENT WITH THIS
OPINION. TWO-THIRDS OF COSTS
18
TO BE PAID BY APPELLANTS,
ONE-THIRD BY APPELLEES.
IN CASE NO. 2580 OF SEPTEMBER
TERM 2019, JUDGMENT OF THE
CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY AFFIRMED IN
PART, REVERSED IN PART, AND
REMANDED FOR THE CIRCUIT
COURT TO ENTER A
DECLARATION OF RIGHTS
PURSUANT TO CJ § 3-409
CONSISTENT WITH THIS
OPINION. TWO-THIRDS OF COSTS
TO BE PAID BY APPELLANTS,
ONE-THIRD BY APPELLEES.
IN CASE NO. 151 OF SEPTEMBER
TERM 2020, JUDGMENT OF THE
CIRCUIT COURT FOR HOWARD
COUNTY AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED FOR THE CIRCUIT
COURT TO ENTER A
DECLARATION OF RIGHTS
PURSUANT TO CJ § 3-409
CONSISTENT WITH THIS
OPINION. TWO-THIRDS OF COSTS
TO BE PAID BY APPELLANTS,
ONE-THIRD BY APPELLEES.
19