Prince George's County v. Aluisi

⁴²⁶ ELDRIDGE, Judge. This case arises out of a dispute over whether the State of Maryland or Prince George’s County has the responsibility of funding the security and service of process associated with the District Court of Maryland, sitting in Prince George’s County. I. The present litigation began with a “Complaint for Writ of Mandamus” filed in the Circuit Court for Prince George’s County by a management corporation that operates residential apartment communities. The initial defendants were Prince George’s County and the Sheriff of Prince George’s County, James Aluisi.

The management corporation alleged that the Sheriffs office failed to serve process in landlord-tenant actions involving the management corporation. The complaint requested that the Sheriff be required to serve all process and that the County be required adequately to fund the Sheriffs office. The Sheriff, in his answer to the complaint, claimed that inadequate funding from the County was the reason that he was unable to serve process. The Sheriff filed a cross claim against Prince George’s County, requesting declaratory and injunctive relief with respect to the issue of inadequate funding.

Thereafter, the management corporation dismissed its complaint, without prejudice, against Prince George’s County; the corporation sought relief only against Sheriff Aluisi. Prince George’s County then filed a cross claim against Sheriff Aluisi, alleging waste and mismanagement of county funds by the Sheriffs office and requesting an audit and the appointment of a receiver. Contending that many of the duties that Sheriff Aluisi alleged he was unable to perform because of inadequate funding were actually the responsibility of the State to fund, the County also filed a third-party complaint against the State of Maryland, the Honorable Martha F. Rasin who is Chief Judge of the District Court of Maryland, and the Honorable Frank M. Kratovil who is the District Court Administrative Judge for District 5 (Prince George’s County). The County requested a declaratory judgment, an “injunction” requiring the State and the State Offi ⁴²⁷ cials to provide process service and court security for the District Court at state expense, reimbursement for the costs of those services already provided “from 1971 to present,” and a writ of mandamus directing the state officials to appoint constables to serve process.

Initially, the circuit court granted the relief sought by the management corporation, issuing a writ of mandamus requiring the Sheriffs Office to serve all district court “summonses concerning failure to pay rent suits” and requiring the Sheriffs Office to “execute all warrants of restitution issued in landlord/tenant cases as directed by the” judges of the District Court in Prince George’s County. Thereafter, on cross-motions for summary judgment, the circuit court on May 22, 1997, filed a comprehensive written opinion containing a declaration of the duties and obligations of the various parties. At the same time, the circuit court filed an order providing in pertinent part as follows: “1. The Sheriff of Prince George’s County shall provide security for the District Court of Maryland for Prince George’s County; including, but not limited to, courtroom security and the transportation of individuals in custody, and that Prince George’s County, Maryland, shall provide necessary funding to the Sheriff to pay the costs of maintaining the District Court security function; and “2.

The Sheriff of Prince George’s County shall serve all civil and criminal process as directed by the Administrative Judge of the District Court of Maryland for Prince George’s County (District 5) and that Prince George’s County, Maryland shall provide the necessary funding to the Sheriff to pay the costs of the Sheriff to serve all District Court process.... ” The circuit court’s declaratory judgment and orders disposed of all claims and issues involving the management corporation, the State of Maryland, Chief Judge Rasin, and Administrative Judge Kratovil. The declaratory judgment and orders also disposed of all claims and issues between ⁴²⁸ Prince George’s County and Sheriff Aluisi except for the County’s cross claim against the Sheriff alleging waste and mismanagement of county funds and seeking the appointment of a receiver. The circuit court indicated that this separate claim against the Sheriff should be considered at a subsequent hearing. In addition, the circuit court, expressly finding no just reason for delay, certified the filed judgment and orders as final pursuant to Maryland Rule 2-60203).

Prince George’s County filed a notice of appeal from the declaratory judgment and orders. Prior to any proceedings in the Court of Special Appeals, the County filed in this Court a petition for a writ of certiorari. The three issues presented by the County are whether the Sheriff must provide security for the District Court in Prince George’s County at the County’s expense, whether process service by the Sheriffs Office is part of the costs of the District Court which should be borne by the State, and whether “the District Court [can] avoid its obligation to appoint constables by directing [that] all its process ... be served by the Sheriff.” Because of the importance of these questions, we granted the County’s petition. Prince George’s County v. Aluisi, 346 Md. 632 , 697 A.2d 915 (1997).

II

Before addressing the parties’ specific arguments, we shall set forth some of the pertinent constitutional and statutory background. Prior to July 1971, the trial courts of limited jurisdiction in Maryland, other than the Orphans’ Courts, consisted of Justices of the Peace sitting as Trial Magistrates, People’s Courts in Baltimore City and a few counties, and the Municipal Court of Baltimore City. These courts “var[ied] in jurisdictional authority, facilities, clerical assistance, and their judges var[ied] in qualifications, term, pay and method of selection. As had been said many times, the system [was] a hodgepodge and badly in need of revision.... ” Maryland State Bar Association’s Committee on Judicial Administration (1968), quoted in William H. Adkins II, The District Court: Past, ⁴²⁹ Present, Future, 3 Md. Bar Journal (No. 4) 6, 7 (1971).

With regard to these pre-1971 courts of limited jurisdiction, Judge Adkins observed that “each political subdivision went its own way and diversity, non-professionalism, political influence and confusion were the watchwords.” Id. at 7. The funding of these pre-1971 courts of limited jurisdiction was the obligation of the counties and Baltimore City. In 1969, Governor Marvin Mandel proposed to the General Assembly a constitutional amendment abolishing the office of Justice of the Peace, Trial Magistrates’ Courts, People’s Courts, and the Municipal Court of Baltimore City, and replacing them with a single statewide court of record named the District Court of Maryland, with basically uniform jurisdiction throughout the State, with full time judges having the same qualifications as judges of the circuit courts, Court of Special Appeals and Court of Appeals, with a single Chief Judge appointed initially by the Governor and thereafter by the Chief Judge of the Court of Appeals, and funded entirely by the State. The General Assembly passed the proposed constitutional amendment, Ch. 789 of the Acts of 1969, and the voters of Maryland ratified it on November 3,1970.

In addition, the Governor proposed and the General Assembly enacted in 1970 and 1971 comprehensive legislation implementing the constitutional amendment creating the District Court. See Ch. 528 of the Acts of 1970 and Ch. 423 of the Acts of 1971. At the same time, this Court, pursuant to its constitutional authority to adopt rules of practice and procedure and rulés for the administration of the judiciary, Article IV, § 18, of the Maryland Constitution, adopted rules to implement the District Court constitutional and statutory provisions. Pursuant to the constitutional amendment and implementing legislation and rules, the District Court became fully operational on July 5,1971.

Although the District Court is a single unified statewide court, with basically uniform jurisdiction and with each judge having territorial jurisdiction throughout the entire State, the implementing legislation does divide the State into twelve ⁴³⁰ districts “solely for purposes of operation and administration.” Birchead v. State, 317 Md. 691, 699 , 566 A.2d 488, 492 (1989). The geographic perimeters of the districts correspond to county boundary lines. Baltimore City and the five largest counties each constitute a single district, and each of the remaining districts consist of two or more counties grouped together. See Maryland Code (1974, 1998 RepLVol.), § 1-602 of the Courts and Judicial Proceedings Article.

A District Court judge in each of the twelve districts is designated by the Chief Judge of the District Court, subject to the approval of the Chief Judge of the Court of Appeals, as the administrative judge of the district. The “administrative judge is responsible for the administration, operation, and maintenance of the District Court in that district and for the conduct of the District Court’s business.” Code (1974, 1998 Repl.Vol.), § 1-607 of the Courts and Judicial Proceedings Article. The' Constitution also provides for the appointment of nonjudicial personnel for the District Court. Article TV, §§ 41F and 41G of the Constitution state that the Chief Judge of the District Court “shall appoint” a Chief Clerk of the District Court, a chief administrative clerk for each district, and “such deputy clerks, constables, and other officers of the District Court as may be necessary.” From the initial implementing legislation until the present, the General Assembly has provided that the entire cost of the District Court be borne by the State Government and not by the counties and Baltimore City.

Section l-608(a) of the Courts and Judicial Proceedings Article states as follows: “The cost of maintenance, operation, and administration, and of providing necessary facilities, including capital costs, of the District Court shall be borne exclusively by the State, and, except a,s provided in Title 7 of this article, or otherwise expressly by law, all revenues derived from the operation and administration of the District Court shall enure to the general funds of the State.” Ch. 528 of the Acts of 1970 contained virtually identical language. See Laws of Maryland 1970, at 1263. It is noteworthy that the second clause of § l-608(a), relating to reve ⁴³¹ nues enuring to the State, has one exception and, in addition, contemplates the possibility of other exceptions “expressly by law.” The first clause, however, mandating that the State “exclusively” bear the cost of maintenance, operation, and administration of the District Court, has no exceptions and does not contemplate the possibility of exceptions under some other law. Although the Constitution provides for the appointment of constables, the District Court implementing legislation deals with the appointment and duties of constables in more detail.

Sections 2-604, 2-605 and 2-606 of the Courts and Judicial ' Proceedings Article state in pertinent part as follows: “ § 2-604. Constables. (a) Appointment; assignment to courts.—The Chief Judge of the District Court, upon the recommendation of the administrative judge of each district, shall appoint the number of constables required to serve process of the District Court within that district. The administrative judge shall assign the constables to the various courts or divisions of courts within his district so that every court or division of a court has at least one constable.” “ § 2-605.

Service of process. (a) Civil process.—All civil process and papers of the District Court shall be served by the constables of the respective districts, except that the administrative judge of a particular district may order the papers and process served by the sheriff of the county. (b) Criminal and traffic process.—All criminal and traffic process, including warrants and summonses for witnesses, shall be served by .the constables of the respective districts, or by the sheriffs of the respective counties or by State or local police as the administrative judge of the district shall direct. However, summonses to witnesses in these cases may be served by mail, rather than by personal service, if the administrative judge of the district directs.” “ § 2-606.

Duties of constables. ⁴³² A constable shall obey and execute all process directed to him from any judge of the District Court of Maryland concerning any matter within the court’s jurisdiction and shall return the process according to its command. He shall serve and levy all executions issued by a judge of the District Court, and in so doing has the same powers, responsibilities and liabilities as a sheriff or deputy sheriff acting in the same capacity if the constable has satisfactorily completed a training program from a police training school approved by the Maryland Police Training Commission.” In addition, Maryland Rule l-202(x) provides that the meaning of the word “Sheriff’ in the Maryland Rules includes “with respect to the District Court, any court constable.” The office of sheriff dates at least from the ninth century, and by the eleventh century “the office of sheriff had taken the shape it was to keep for the next several centuries.” Note, The Maryland Sheriff v. Modern and Efficient Administration of Justice, 2 U. Balt. L.Rev. 282, 283 (1973). “All the powers and duties currently possessed by a sheriff in the United States are traceable to his common law counterpart in England.” Ibid. The first sheriff in Maryland was appointed in the early 1600’s.

The sheriff was “[appointed by the governor ... [and] served all writs and warrants, punished criminals as directed, collected taxes, maintained prisons, took bail, held inquests, and made election returns.” Id. at 285. The Constitution of 1776 provided that sheriffs be elected rather than appointed, but the provision did not contain an enumeration of the duties and powers of the sheriff. In 1860, Chief Judge Le Grand wrote, in a concurring opinion in Mayor, & c., of Baltimore v. State, 15 Md. 376, 488 (1860), as follows: “The 20th section of the fourth Article of the Constitution [of 1851], which mentions the office [of the sheriff], and provides for filling it, does not specify or describe the powers and duties of the sheriff. These are left to the common law and the Acts of Assembly.

The charge of ⁴³³ other conservators of the peace is nowhere, in the Constitution, given to him. There is nothing to prohibit the Legislature from adding to or diminishing his duties.... ” Under the current Constitution, which is the Constitution of 1867, Article IV, § 44, provides for the election of a sheriff in each county and in Baltimore City. Section 44 states that the sheriffs “exercise such powers and perform such duties as now are or may hereafter be fixed by law.” Under this provision, the duties of the sheriffs are those prescribed by the common law, the enactments of the General Assembly, and the rules of the Court of Appeals. These duties may be changed by the General Assembly or, to the extent that the matter involves practice and procedure in the courts or the administration of the judiciary, by the Court of Appeals.

See Rucker v. Harford County, 316 Md. 275, 286-289 , 558 A.2d 399, 404-406 (1989), and cases there cited. Moreover, “sheriffs retain their common law powers and duties until deprived of them by the [State] Legislature.” Soper v. Montgomery County, 294 Md. 331, 337 , 449 A.2d 1158, 1161 (1982). See Harford County v. University, 318 Md. 525, 528 , 569 A.2d 649, 650 (1990); Beasley v. Ridout, 94 Md. 641, 650, 655-658 , 52 A. 61, 64-66 (1902). Providing security for the courts is clearly a common law duty of the sheriffs if required by the courts.

This Court in Green v. State, 122 Md. 288, 295-296 , 89 A. 608, 610 (1914), stated: “It has never been disputed, in this State, that it was the official duty of the sheriff, to attend in person, or by deputy, the sessions of the law courts of his county and in the City of Baltimore. “It is difficult to see how the work of the courts could be properly and expeditiously conducted in the absence of an officer, clothed with the power and authority of the sheriff. “It was the duty of the sheriff at common law to attend the courts, in person, or by deputy. Blackstone’s Commentaries, Vol. 1, star page 345, and it has always been regarded as one of the official duties of his office to so attend the sessions of the law courts of the State.” ⁴³⁴ See also Code (1974, 1998 Repl.Vol.), § 2-309(r)(8) of the Courts and Judicial Proceedings Article, which lists among the duties of the Prince George’s County Sheriffs Office “security of all State and county courts and perform such duties as may be required of them by the courts.... ” Sheriffs and deputy sheriffs are state officials, not local government officials, and their duties are determined by state law, not locally enacted ordinances. Rucker v. Harford County, supra, 316 Md. at 281-291 , 558 A.2d at 402-407 . Nevertheless, under Article IV, § 44, of the Constitution, “[a]ll fees collected by the Sheriff shall be accounted for and paid to the Treasury of the several counties and of Baltimore City, respectively.” Furthermore, § 2-309 of the Courts and Judicial Proceedings Article generally provides that the salaries, office expenses and traveling expenses, including automobiles, of the sheriffs’ offices shall be paid by the counties.

On the other hand, not necessarily all expenses by a sheriffs office are the financial responsibility of the counties and Baltimore City. If any appropriate expense of a sheriffs office is not by statute specifically made the responsibility of the local government, the local government is not obliged to provide the funds, and the State may be responsible for making the payment. Rucker v. Harford County, supra, 316 Md. at 294-302 , 558 A.2d at 408-412 . In addition, even when a particular expense of a sheriffs office is initially the responsibility of one governmental level, there may be inter-governmental reimbursement arrangements.

See, e.g., Code (1985, 1995 RepLVol.), § 9-108 of the State Finance and Procurement Article; Code (1974, 1998 Repl. Vol), § 2-404 of the Courts and Judicial Proceedings Article. Turning to the present practice in the District Court of Maryland with respect to court security and service of process, we first point out that “we take judicial notice of the operation and practices of the courts of this State.” State v. Frazier, 298 Md. 422 , 430 n. 5, 470 A.2d 1269 , 1273 n. 5 (1984). See Davidson v. Miller, 276 Md. 54, 79-81 , 344 A.2d 422, 437-438 (1975).

In Baltimore City and in most of the counties, District Court personnel designated as “bailiffs” generally ⁴³⁵ provide courtroom and courthouse security at District Court locations. Some of these bailiffs are regular District Court employees, but most of them are “contractual” employees; all are paid by the State. Where a District Court facility is located in a so-called multi-service building which contains other state agencies, building security may be partially provided by employees of the State Department of General Services; all such employees are also paid by the State. Courtroom and courthouse security for the District Court is presently provided, in whole or in part, by the sheriffs’ offices in three counties: Carroll, Charles, and Prince George’s.

In Carroll and Charles counties, the District Court pays the counties something for this service. It is apparently only in Prince George’s County where the Sheriffs Office provides substantial security services to the District Court and where there is no reimbursement whatsoever for this service from the State to the County. Under Maryland Rule 3~123(a), service of District Court civil process generally may be made by a sheriff, deputy sheriff, District Court constable, or “by a competent private person.... ” When service of District Court civil process is made by a government official, it is made by a sheriff or deputy sheriff in Baltimore City and in 21 counties. District Court criminal process in Baltimore City and in 21 counties is served by the sheriffs office or by a police department.

There are no constables employed for District Court locations in Baltimore City and in 21 of the 23 counties. While the sheriffs’ offices in Baltimore City and the 21 counties receive fees for service of process which go to the City and the counties, the State does not reimburse the counties if the expenses of process service by the sheriffs’ offices exceed the fees. Presently, and for the fiscal year beginning July 1,1999, the District Court employs and will continue to employ only 15 constables. See Maryland FY 2000 Budget, Operating Budget Part One, at 97.

Thirteen of these constables are employed at District Court locations in Baltimore County and ⁴³⁶ two. in Washington County. Constables are used for service of District Court process only in these two counties. The salaries and expenses of the constables in the two counties are, of course, paid by the State, and the fees collected for service of process by these constables go to the State.

III

A. We shall first address the issue of security. Prince George’s County argues that, although the Sheriff is “authorized” to provide security for the District Court, the Sheriff has no common law or statutory “duty” or “obligation” to provide such security. The County contends that Code (1974, 1998 RepLVol.), § 2-309(r)(8) of the Courts and Judicial Proceedings' Article, listing security for the courts as part of the duties of the Prince George’s County Sheriff, is “permissive not mandatory.” (Petitioner’s reply brief at 2). The County further argues that the provision of security is part of the District Court’s “cost of maintenance, operation, and administration” which § l-608(a) of the Courts and Judicial Proceedings Article mandates “shall be borne exclusively by the State.” According to the County, “if the function [of the District Court security] is performed by the Sheriff as authorized, the State must reimburse the County for that cost.” (Petitioner’s reply brief at 5).

The State defendants maintain that the provision of security for the courts, including the District Court, is a common law duty of the sheriffs and is an expressed statutory duty of the Prince George’s County Sheriff. With regard to § l-608(a) of the Courts and Judicial Proceedings Article, requiring the State to bear the costs of “maintenance, operation, and administration” of the District Court, the State defendants assert that courtroom and courthouse security for the District Court is a “law enforcement function” and is not encompassed within the statutory phrase “ ‘maintenance, operation and administration’ of the District Court.” (Respondents’ brief at 12). Alternatively, the State defendants argue that “even if ‘mainte ⁴³⁷ nance, operation and administration’ of the District Court could be interpreted to include court security, § 2-309(r)(8)(iii), which deals specifically with the subject of court security in Prince George’s County,” is inconsistent with § 1-608(a) and “must control over § l-608(a) ... which deals with the District Court generally.” (Respondents’ brief at 12). B. Initially, we agree with the State defendants and the circuit court that the provision of courtroom and courthouse security for the District Court, when requested by the District Court, is generally a common law duty of the sheriffs’ offices throughout the State and is specifically, by statute, a duty of the Sheriff of Prince George’s County.

This Court in Green v. State, supra, 122 Md. at 296 , 89 A. at 610 , clearly held that “[i]t was the duty of the sheriff at common law to attend the courts, in person, or by deputy,” and that “it has always been regarded as one of the official duties of his office to so attend the sessions of the law courts of the State.” See Soper v. Montgomery County, supra, 294 Md. at 337 , 449 A.2d at 1161 (“providing security for courts” is part of the common law powers and duties of a sheriff). Rather than having been changed by statute, this common law duty, with regard to the Sheriff of Prince George’s County, has been expressly codified in § 2-309(r)(8) of the Courts and Judicial Proceedings Article, which states: “The Sheriff [of Prince George’s County] and the Sheriffs deputies shall be limited in their duties as law enforcement officers, as follows: “(iii) The security of all State and county courts and perform such duties as may be required of them by the courts.” Neither the language of the Green opinion nor the above-quoted statute support Prince George’s County argument that the Sheriff is simply authorized, but not obliged, to provide security for the District Court. Both the Green opinion and ⁴³⁸ the statute repeatedly employ the words “duty” and “duties.” Moreover, nothing in the language of the Green opinion or the statute furnishes any basis for excluding the District Court. The statute encompasses the “security of all State and county courts” (emphasis added).

We perceive no ambiguity in the word “all.” Prince George’s County relies upon two opinions by the Attorney General, 57 Opinions of the Attorney General 614 (1972), and 60 Opinions of the Attorney General 647, 652-653 (1975). In the first opinion the Attorney General seemed to suggest that a sheriffs common law duty to attend the courts did not apply to the “Juvenile Courts of Baltimore City,” because other personnel such as “clerks, stenographers, physicians and probation officers” and “court-appointed bailiff[s]” had “been provided to staff the juvenile courts.” 57 Opinions of the Attorney General, supra, at 620-621. The second Attorney General’s opinion took the position that- a sheriffs common law duty to provide security for the courts did not extend to the District Court of Maryland, and that, therefore, the Sheriff of Washington County need not provide security for the District Court of Maryland sitting in Washington County. The Attorney General’s reasoning began with the assertion that a sheriffs common law duty to provide security for the courts was limited to courts of record.

Therefore, according to the Attorney General, the duty had not extended to the “former justices of the peace and magistrates courts which at common law and under Maryland law were not courts of record. Under the common law the duty to attend the justices and magistrates courts lay with the constable rather than with the sheriff.” 60 Opinions of the Attorney General, supra, at 652. The Attorney General then appeared to reason that, because the District Court was the successor to the Justices of the Peace and Magistrate Courts, “in the absence of any statutory provision imposing a duty on the sheriff to attend the District Courts, no such obligation exists.” Id. at 653. ⁴³⁹ In our view, the position taken by the Attorney General in both of the above-cited opinions is erroneous. As to the first Opinion, No. 57, the mere fact that other personnel may be provided to assist a court is no reason to relieve a sheriff of the common law duty to provide security if