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Judge Elihu Smails: You know, you should play with Dr. Beeper and myself. I mean, he’s been club champion for three years running, and I’m no slouch myself.

Ty Webb: Don’t sell yourself short, Judge. You’re a tremendous slouch.

Caddyshack (1980), Harold Ramis, director; Judge Smails played by Ted Knight; Ty Web played by Chevy Chase 

In Thornton Mellon, LLC, et al.  v. Frederick County Sheriff, et al. (Nos. 2224, 2330 2580, Sept. Term 2019; No. 151, Sept. Term 2020) (9/3/2021), a group of tax sale purchasers named for movie characters like Chevy Chase’s Ty Webb, and Rodney Dangerfield’s Thornton Mellon and Cy Czervik, challenged the authority of county sheriffs to set eviction procedures that increased eviction costs. The Court of Special Appeals characterized the effort as trying to persuade it “to force the sheriffs’ offices to make the tax sale purchaser’s job easier or cheaper,” which the appellants certainly had a right to do. Id. at 3–4, n. 3. The Court also noted that the appellants “have chosen to conduct their business under the names of, among others, the ‘crass, unpolished’ self-made millionaire from the film Back to School, and the ‘boorish real estate developer’ from the film Caddyshack,” also within their rights. Id. (citations omitted). These observations did not bode well, however, as the Court went on to conclude that two of the three procedures complained of were legitimate exercises of the sheriffs’ authority to perform duties expressly granted to them.  

The consolidated appeals derived from the State’s regime for collecting delinquent real property taxes.  By statute, unpaid taxes constitute a lien on the property.  As summarized by the Court, Subtitle 8 of Title 14 of the Real Property Article of the Annotated Code dictates what comes next:

To collect the amount due in delinquent property taxes, the tax collector in each county conducts a yearly tax sale, where the county’s lien is sold to the highest bidder [who] is awarded a tax sale certificate. 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. 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….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. With the foreclosure judgment, the tax sale purchaser is entitled to a writ of possession [which] directs the sheriff to place the new owner in possession of the property. 

Id. at 1–2 (citations omitted). 

The sheriff’s role in the process is codified at Md. Code Ann., Courts and Judicial Proceedings § 2-301(a), which states simply that “the sheriff shall serve all papers directed to him according to their instructions, within the time set by the court.” Action by the sheriff is triggered by resort to Maryland Rule 2-647, which provides that upon request the clerk of court is “to issue a writ directing the sheriff to place that party in possession.” The manner by which the sheriff is to perform these duties is not specified.

Over time, sheriff’s departments across the state have adopted their own policies for serving writs of possession.  Several of these—the mover policy, the weather policy, and the 60-day policy—offended Thornton Mellon and its affiliates.

The mover policy required tax sale purchasers to supply sufficient movers and equipment to carry the former owner’s personalty to the street before the sheriff would serve the writ. The sheriffs argued that this procedure is consistent with that authorized by Md. Code Ann., Real Property (Real Prop.) § 8-401(d)(1)(i) for the eviction of a tenant after a failure to pay rent action. Thornton Mellon, on the other hand, wanted the sheriff simply to change the locks on the doors and leave it up to the purchaser to dispose of the property left inside. The sheriff’s policy, the purchasers argued, increased their costs, served as a disincentive to participate in tax sales, and was inconsistent with the statutory regime. Id. at 13. 

The weather policy allowed sheriffs to postpone evictions during inclement weather. This practice apparently derived from Real Prop. § 8-401(d)(2)(i), which expressly authorizes district court administrative judges to stay evictions during “extreme weather conditions.” Thornton Mellon observed that there was no such authority granted to sheriffs in tax foreclosure matters, and that the standards for exercising it were vague and uncertain.   

Under the 60-day policy, sheriffs refused to serve “stale” writs, or those older than 60 days. Here again there was statutory authority for such a policy in failure to pay rent actions, but no corresponding provision for tax sale foreclosures. See Real Prop. § 8-401(d)(1)(ii).

The Court began its analysis with settled law: “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.” Slip Op.  at 5. The scope of such implied powers has been liberally construed, but their exercise must be reasonable, and cannot be arbitrary or capricious, inconsistent with or alter, amend, enlarge, or restrict the express powers being administered. Id. at 6. While these powers have been applied to “all manner of officials in Maryland” (e.g., the Comptroller, the Department of Public Safety and Correctional Services, and municipal bodies), “[o]ur courts have not previously applied the fairly implied powers doctrine to sheriffs.” Id. at 7. Thornton Mellon suggested “that because the courts haven’t yet applied this doctrine to sheriffs, courts should refuse to do so.” Id.   

The Court reviewed the role of a Maryland sheriff, whose colonial roots give it “a foot in each world: ancient and modern; State and local; executive and judicial.” Id. at 9 (emphasis in original). The Court determined that while in many respects the sheriff is sui generis, “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.” Id.  “We hold, therefore, that the 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.” Id. at 9–10.

Turning to the specific matters at hand, the Court found no problem with the mover policy, which is derived from a procedure mandated by statute when they serve warrants of restitution on tenants. The Court observed that “[w]hile 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.” Id. at 12.  The Court had no opinion on the relative merits of putting the property on the curb, as required by the mover policy, or changing the locks, as preferred by Thornton Mellon:  “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.” Id. at 13.

Thornton Mellon’s argument on the weather policy met the same fate. Here, too, the sheriffs argued that they sought consistency with procedures statutorily required in failure to pay rent cases, and to avoid the “inhumane, dangerous and/or impractical” results of moving the former homeowner’s property to the street in bad weather. Said the Court: “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.” Id. at 14.

The Court came to a different conclusion with respect to the 60-day policy even though it, too, had an analogue in the failure to pay rent statute. Noting that there was nothing in the tax sale statutes or Rule 2-647 that would cause a writ of possession to expire, the Court concluded 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.” Id. at 16. “As a result, the 60-day policy exceeds the sheriffs’ fairly implied powers and is invalid.” Id. at 18.

Rodney Dangerfield thus earned some fleeting respect, quickly tempered by the Court’s reference to some unsavory aspects of the tax sale process. The opinion observed that case law describes tax sale purchasers as performing a public service by collecting delinquent taxes at little cost to local taxing authorities. It expressed concern, however, that the process is costly for the homeowner and lacks many of the protections typically accorded Maryland consumers. “Worse still, this burden falls hardest on the poor and the elderly. 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,” as this very court did in an earlier case involving Thornton Mellon’s alleged use of misleading documentation. Id. at p. 3, n. 3 (citations omitted).  As that case is now pending in the Court of Appeals, Caddyshack and Back to School reruns are a certainty.