Thornton Mellon, LLC v. Frederick Cnty. Sheriff

THORNTON MELLON, LLC, ET AL. v. FREDERICK COUNTY SHERIFF, BALTIMORE COUNTY SHERIFF, ANNE ARUNDEL COUNTY SHERIFF, ET AL., AND HOWARD COUNTY SHERIFF

Nos. 2224-2019, 2330-2019, 2580-2019, 151-2020

Court of Special Appeals of Maryland

September 3, 2021

Circuit Court for Frederick County, Baltimore County, Anne Arundel County, And Howard County CaseNos. C-10-CV-18-00976 03-C-18-011990, C-02-CV-19-002613, and C-13-CV-19-001149.

Berger, Nazarian, Friedman, JJ.

OPINION

FRIEDMAN, J.

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 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 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 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 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 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]

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...