Mayor of Baltimore v. Hooper

CHARLES E. ORTH, Jr., Associate Judge (retired), Specially Assigned. I For over a hundred and twenty-five years it has been the law of Maryland that ³⁸⁰ municipal corporations and their officers having money or property in their hands to which other persons are entitled are not liable to the creditors of such persons on attachment or garnishment process unless made so by statute or charter. City of Baltimore v. Comptroller, 292 Md. 293, 296 , 439 A.2d 1095 (1982), quoting 17 E. McQuillin, Municipal Corporations § 49.86 at 386 (3d ed. 1968) (emphasis added). See 1982 revised vol., § 49.86 at 355.

The seminal case in this State on the matter is Baltimore v. Root, 8 Md. 95 , 63 American Decisions 692 (1855), and attachment cases in this Court have been consistent in their adherence to the rule of Root . The cases were cited and summarized in the comprehensive opinion by Rodowsky, J., speaking for the Court in City of Baltimore v. Comptroller, 292 Md. at 301-304 , 439 A.2d 1095 . “[W]e read Root and its progeny to espouse the proposition that attachments simply are not authorized to be served on public officials [in the absence of a statute expressly authorizing such execution].” Id. at 304, 439 A.2d 1095 . We observed: Our cases have said that the general provisions of attachment statutes were not intended to include public officials as garnishees, and we have long held that such attachments do not lie. * * * The historic pattern has been one of exclusion by construction in the absence of clear statutory inclusion. Id. at 311 , 439 A.2d 1095 .

The rule of Root was explicitly affirmed in City of Baltimore v. Comptroller. We capsuled our holding in that case in Mass Transit v. Household Finance, 292 Md. 313, 315 , 439 A.2d 1104 (1982), to be that a wage garnishment ... did not reach wages of an employee of Baltimore City, in the absence of a statute authorizing such execution to be laid in the hands of a public official. In City of Baltimore v. Comptroller, 292 Md. at 299, 439 A.2d 1095 , we accepted Root’s rationale for the rule, which it borrowed from Bulkley v. Eckert, 3 Pa. 368 , 45 American Decisions 650 (1846): ³⁸¹ Great public inconvenience would ensue if money could be thus arrested in the hands of officers, and they be made liable to all the delay, embarrassment and trouble that would ensue from being stopped in the routine of their business, compelled to appear in court, employ counsel, and answer interrogatories, as well as take care that the proceedings are regularly carried on, and bail to return duly given. If a precedent of this kind were set there seems no reason why the State or county treasurer, or other fiscal officers of the commonwealth, or of municipal bodies, may not be subjected to the levying of attachments, which has never been attempted nor supposed to come within the attachment law.

We emphasized in Mass Transit, 292 Md. at 816 , 439 A.2d 1104 , that the general rule is based upon considerations of public policy rather than the waiver of sovereign immunity. We explained: The policy of the law which prevents the laying of attachments in the hands of public officials seeks to prevent inconvenience and the disruption of public affairs. That principle operates independently of whether governmental immunity has been waived as to the garnishee. Questions of governmental immunity, or its waiver, are concerned with whether the State, or its agencies and instrumentalities, are subject to suit and a monetary judgment on claims asserted against them.

Attachments served on public officials, however, raise the issue of whether the public official is subject to the process by which the creditor seeks to collect from his debtor, where that debtor is a creditor of the public garnishee. Even if the governmental entity does not have a sovereign immunity defense to the claim of its creditor against it, that claim does not become subject to attachment at the instance of a creditor of the claim holder. Id. at 316 , 439 A.2d 1104 . In other words, even if the General Assembly has waived the defense of governmental immunity as to [a municipality or other governmental agency], such a waiver as to suits against it would ³⁸² not make it amenable to attachments issued at the direction of third parties.

Id. at 317 , 439 A.2d 1104 . City of Baltimore v. Comptroller involved the State (Comptroller of the Treasury) seeking to attach the wages of a Baltimore City employee to collect on a recorded lien for delinquent retail sales taxes. Id. at 292 Md. at 295, 439 A.2d 1095 . Mass Transit involved a private judgment creditor seeking to attach the wages of two State employees to collect a private debt.

Id. at 292 Md. at 314-315, 439 A.2d 1104 . In each case, invoking the rule of Root , we held that the attachments could not reach the wages because there was no authorizing statute. City of Baltimore v. Comptroller 292 Md. at 311-312, 439 A.2d 1095 ; Mass Transit 292 Md. at 317 , 439 A.2d 1104 . The General Assembly got the message and responded promptly.

It enacted Acts 1982, ch. 489, codified as Maryland Code (1975, 1983 Repl. Yol.) § 15-607 of the Commercial Law Article (CL), effective 1 June 1982. 1 The Act provided: Wages, due from or payable by the State, or a county, municipal corporation, or other political subdivision, and the public officers of the State or a county, municipal corporation, or other political subdivision to an individual, are subject to attachment process brought for the enforcement of the private legal obligations of the individu ³⁸³ al in the same manner and to the same extent as if the State, eounty, municipal corporation, or other political subdivision, and their respective public officers, were a private person. II “The inhabitants of the City of Baltimore are a corporation, by the name of the ‘Mayor and City Council of Baltimore.’ ” (Hereinafter Baltimore City.) Baltimore City Charter (1964 Revision, 1985 Repl. Vol.) Art. I, § 1.

Among the general powers of Baltimore City is “[t]o provide for protection against fires, and to establish and to regulate all matters relating to a Fire Department.” Id., Art. II, § 7. The power was implemented by Art. VII, § 45 of the City Charter upon the declaration that “[t]here shall be a Fire Department____” The Fire Department is a municipal agency, id., Art. I, § 2(j), of a municipal corporation, Baltimore City. The “Fire and Police Employees’ Retirement System of the City of Baltimore” (the Retirement System), managed by a Board of Trustees, was established by the Baltimore City Code (1976) Art. 22, § 29. Its purpose is to provide “retirement allowances and death benefits ... for such officers and employees ... of the Fire Department of Baltimore City [among others] as are included in the membership [of the Retirement System]____” 2 Any member who has acquired five (5) or more years of service and who has been determined by a claims examiner to be mentally or physically incapacitated for the further performance of the duties of the member’s job classification in the employ of Baltimore City, and that such incapacity is likely to be permanent, shall be retired ³⁸⁴ by the Board of Trustees on an ordinary disability retirement____ Id., § 34(c).

Any member who has been determined by the claims examiner to be totally and permanently incapacitated for the further performance of the duties of his job classification in the employ of Baltimore City, as the result of an injury arising out of and in the course of the actual performance of duty, without wilful negligence on his part, shall be retired by the Board of Trustees on a special disability retirement. Id., § 34(e). Certain allowances are provided upon retirement for ordinary disability, id., § 34(d), and upon retirement for special disability, id., § 34(f). Ill Calvin Joseph Miller was an employee of the Fire Department of Baltimore City for 18 years and had attained the rank of lieutenant.

He was a member of the Fire and Police Employees’ Retirement System of the City of Baltimore. Two incidents which occurred in the performance of his duties, the first in February 1982 and the second in February 1984, led to his retirement. Both of the incidents, according to the Examiner for the Retirement System, who heard Miller’s claim for special disability benefits, “resulted in depression, stress, and anxiety.” On 16 November 1984, the Examiner found that Miller had clearly established by a preponderance of the evidence both medical as well as his testimony that he is mentally incapacitated to perform the duties of his job classification and that such incapacity is likely to be permanent. The Examiner decided that Miller was eligible for “Ordinary Disability Benefits.” 3 Miller was retired by the Board of ³⁸⁵ Trustees and began receiving the benefits as allowed by the Baltimore City Code, Art. 22, § 34(d).

IV In the middle of 1983, Miller employed William D. Hooper, Jr., an attorney at law admitted to practice before the Court of Appeals of Maryland, and a partner in the law firm of Lentz, Hooper, Jacobs & Blevins, P.A., to represent him with respect to marital problems besetting him. Hooper performed the appropriate services, which culminated in a divorce. He submitted a bill for his fee in the amount of $1,764.10. The fee was not paid, and in December 1985 Hooper obtained a judgment in the Maryland District Court in Harford County for the amount due.

The judgment was not satisfied. In the latter part of 1986, the District Court, on Hooper’s request, issued a writ for “Garnishment on Wages,” pursuant to Maryland Rule “3-646,” on the judgment obtained, to be served on the “Administrator of the City of Baltimore Retirement Systems.” Baltimore City, as garnishee, answered nulla bono, and filed a motion to quash the attachment. The motion was heard in the District Court and denied. On appeal, the Circuit Court for Harford County affirmed the judgment of the District Court.

We granted the petition of Baltimore City for the issuance of a writ of certiorari. V The question the appeal requires us to answer is simply stated: May Hooper, a private judgment creditor, attach the allowances payable to Miller by Baltimore City? Here, as in City of Baltimore v. Comptroller and Mass Transit , the attachments cannot reach the allowances unless there is an authorizing statute. There is no authorizing statute.

Neither public general law, nor public local law, ³⁸⁶ nor municipal ordinance expressly permits allowances, disability income payments, or like benefits, such as are paid Miller by Baltimore City, to be attached. The Commercial Law Article, § 15-607, authorizes only that “wages” are subject to the attachment process. Therefore, the rule of Root prevails unless the allowances payable to Miller are “wages” within the contemplation of CL § 15-607. It is apparent that the authorization to attach wages due from or payable by governmental entities was by way of amendment to the Commercial Law Article for reasons suggested by the counsel for the House Judiciary Committee in her letter to a senator sponsoring the bill.

See note 1 supra. Counsel enclosed copies of our opinions in City of Baltimore v. Comptroller and Mass Transit , and said: The Court found that the inability to attach public employee wages stems not from the bar of sovereign immunity but from the scope of the attachment procedure or mechanism. That is, the statutory mechanism for attachment in the Commercial Law Article does not reach governmental entities. Counsel concluded: For this reason, the amendments to SB 24 are drafted to amend the Commercial Law Article____ It follows that “wages” in CL § 15-607 has the meaning of “wages” as defined in the Commercial Law Article under subtitle 6, “Attachment of Wages.” CL § 15-601(c) declares: “Wages” means all monetary remuneration paid to any employee for his employment.

Miller’s status as an employee of the Fire Department of Baltimore City was terminated by his retirement by the Board of Trustees. Thereafter, he had no authority or obligations with respect to the Department. He had no duties to perform, and, in fact, it was determined that he no longer had the capacity to perform the functions of a fireman. The monies payable to him after his retirement were not “wages” within the meaning of CL § 15-601(c) ³⁸⁷ because they did not represent “remuneration paid to any employee for his employment.” Miller was no longer employed and no longer enjoyed the status of an employee.

Furthermore, the nature of the allowances paid Miller, pursuant to Art. 22, § 34(d) of the Baltimore City Code upon his retirement for ordinary disability, in no wise falls within the definition of CL § 15-601(c) so as to be subject to attachment. They are monies to be paid in an amount fixed by legislative fiat as recompense for suffering a disability. We note that a part of the allowance may represent monies paid by the beneficiary by way of contributions to the Retirement System during his employment. Compare United States v. Williams, 279 Md. 673 , 370 A.2d 1134 (1977), in which we found that military retirement pay is “wages” within the meaning of CL § 15-601(c) due to its nature and to the conditions of its entitlement to receive it, and we held that exemptions from wage garnishment do not apply when the underlying obligation is for alimony.

Cf. Lookingbill v. Lookingbill, 301 Md. 283 , 483 A.2d 1 (1984), in which we determined that the allowance received by the husband under a disability plan constituted marital