Rucker v. Harford County

ELDRIDGE, Judge. The United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974, 1984 ReplVol.), §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article, has certified the following two questions to this Court: “1. Whether the Sheriff or Deputy Sheriffs of Harford County are employees of the State of Maryland or of Harford County? ²⁷⁸ “2. Whether Harford County or the State of Maryland is obligated to fund the expenses associated with claims for liability involving the Harford County Sheriff, the Deputy Sheriffs or the Sheriffs office, including the cost of liability insurance, the costs of defending suits brought against them and the payment of any settlements and judgment?” The facts relevant to these questions were set forth in the Order of Certification.

On July 28, 1987, an individual named Jerry Mace stole a car, drove through the Susquehanna River Bridge Toll Facility without paying the toll, and proceeded on Interstate 95 towards Edgewood, Maryland, at speeds in excess of 110 miles per hour. Maryland State Police pursued Mace on Interstate 95, and Harford County Sheriffs Deputies joined the chase when Mace exited onto Maryland Route 24. Mace then drove off the road and into a cornfield. When Mace tried to escape from the cornfield, shots were fired, and David Rucker, a civilian bystander, was struck by a bullet.

David Rucker and his father filed the present action in the United States District Court for the District of Maryland. Named as defendants in the complaint, as amended, were Harford County, the “Harford County Sheriffs Department,” each of the Deputy Sheriffs involved in the chase, the Superintendent of the Maryland State Police, and each of the State Police Troopers involved in the chase. The plaintiffs’ action was based on common law negligence principles and claimed violations of constitutional rights under 42 U.S.C. § 1983 . The Certification Order stated that the Deputy Sheriffs “have been sued in their capacity as public officials, and have moved to dismiss the portion of the complaint that seeks recovery against them for the alleged violation of David Rucker’s constitutional rights under 42 U.S.C. § 1983 .

The Deputy Sheriffs in this case assert that any suit against them in their official capacities is barred by the Eleventh Amendment because they are state employees or officials. This argument is premised on the as ²⁷⁹ sumption that any judgment against them would ‘expend itself on the public treasury or domain.’ The State disputes this core assumption arguing that the County is responsible for any judgments rendered against the Deputy Sheriffs. “Whether the Deputies are State or County employees may have other implications in this litigation.” The Order of Certification also included a stipulation of facts entered into by the several defendants. 1 The dispu ²⁸⁰ tants with regard to the status of the Harford County Sheriff and Deputy Sheriffs are all defendants. Harford County and the Deputy Sheriffs take the position that the Sheriff and Deputy Sheriffs are State employees. The State Police defendants, represented by the Maryland Attorney General, take the position that the Sheriff and Deputy Sheriffs are county employees.

The same parties differ with respect to the second certified question relating to financial responsibility for liability claims. I The first certified question broadly asks whether the Sheriff or Deputy Sheriffs of Harford County are State or county employees. Preliminarily, we wish to emphasize that we answer this question as a matter of Maryland law only. Whether the Harford County Sheriffs Office is to be regarded as a State or local government agency, and whether the Sheriff and Deputy Sheriffs are to be regarded as State or local government employees, for purposes of the Eleventh Amendment or 42 U.S.C. § 1983 , are federal law ²⁸¹ issues which are not before this Court in a proceeding under the Certification of Questions of Law Act.

Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520, 536-537 , 479 A.2d 921 (1984). See Clea v. City of Baltimore, 312 Md. 662 , 670 n. 5, 541 A.2d 1303 , 1306-1307 n. 5 (1988) (“with regard to federal law liability under 42 U.S.C. § 1983 , the state law classification of the [agency] ... would not be decisive”). In response to the first certified question, we conclude that, as a matter of Maryland law, the Sheriff and Deputy Sheriffs of Harford County are officials and/or employees of the State of Maryland rather than of Harford County. 2 The role of a sheriff as a State constitutional officer whose duties are subject to control by the General Assembly leads us to the conclusion that sheriffs are State rather than local government employees.

Because a deputy sheriff functions as the alter ego of the sheriff, and exercises the same authority, we reach the same conclusion with respect to deputy sheriffs. This Court in Talbot County v. Carroll, 172 Md. 386, 387 , 191 A. 574 (1937), flatly took the position that sheriffs are State rather than county officials. In that case we held that a county government was not required to reimburse a sheriff for premiums paid for his official bond. In reaching ²⁸² that result we dealt with a provision of the Maryland Code which, as described by the Court, stated that “when any county treasurer, tax collector, county commissioner, or any officer coming within the common meaning of a county official shall furnish an official bond ... the county may pay the premium ... from the general fund of the county ‘provided, however, that when any such bond is given by a clerk of court, register of wills, state’s attorney or sheriff, the payment of the premium on said bond shall be charged as an expense of any such officer.’ ” ( 172 Md. at 387 , 191 A. at 575 ).

In construing this language, we held as follows ( 172 Md. at 387 , 191 A. at 575 , emphasis added): “The two parts of the statute, the first clause and the proviso, are distinct in respect to officials and the public funds from which the premiums may be paid. County officials are specified in the first clause. Those in the second are state officials. A sheriff, ‘as conservator of the peace in his county or bailiwick, is the representative of the king, or sovereign power of the State for that purpose.’ South v. Maryland, 18 How. 396, 402 , 15 L.Ed. 433 [1856].” The Attorney General attempts to distinguish Talbot County v. Carroll by pointing out that the scheme for paying the salary and expenses of sheriffs has changed since the time of that decision.

At that time the sheriffs’ offices were funded through fees collected by the sheriffs. Since 1945, the salaries and many of the expenses of the sheriffs’ offices have been paid directly by the counties. Art. IV, § 44, of the Maryland Constitution; Code (1939, 1947 Cum.Supp.), Art. 87, § 37B. Under this Court’s decisions, however, the source of an agency’s or official’s funding is not dispositive of the agency’s or official’s status as a State government entity or ²⁸³ local government entity. 3 In Valle v. Pressman, 229 Md. 591 , 185 A.2d 368 (1962), this Court was concerned with whether state’s attorneys are State or local officers.

State’s attorneys, like sheriffs, operate within and are compensated by a particular county or Baltimore City. See Code (1957, 1987 Repl.Vol), Art. 10, § 40. The Court unequivocally held that a state’s attorney was a State officer, saying ( 229 Md. at 600 , 185 A.2d at 374 ): “The office is created by the Constitution.... Removal [of a state’s attorney from office is] a State and not a local function.

The naming of a successor to a State’s Attorney who dies or resigns during his term is confided to the Judges of the political subdivision in which he was serving, and Maryland Judges are Officers of the State.” In several cases it has been held that particular agencies or officials are State agencies or officials despite the fact that local governments are wholly or substantially responsible for funding those agencies or officials. See, e.g., Clea v. City of Baltimore, supra, 312 Md. at 668 , 541 A.2d at 1306 (“Unlike other municipal or county police departments which are agencies of the municipality or county ..., the Baltimore City Police Department is a State agency”); Bd. of Educ. v. P.G. Co. Educators’ Ass’n, 309 Md. 85 , 95 n. 3, 522 A.2d 931 (1987) (“County boards of education are, of course, State agencies and not agencies of the county ²⁸⁴ governments”); Md-Nat’l Cap. P. & P. Comm’n v. Kranz, 308 Md. 618, 622-626 , 521 A.2d 729 (1987) (Commission a State agency for tort liability purposes); Katz v. Washington Sub. San.

Comm’n, 284 Md. 503 , 397 A.2d 1027 (1979); Board v. John K. Ruff, 278 Md. 580 , 366 A.2d 360 (1976). See also County Council v. Montgomery Ass’n, 274 Md. 52, 62-63 , 333 A.2d 596 (1975), and 58 Op. Atty. Gen. 285 (election boards); Nesbitt v. Fallon, 203 Md. 534, 545 , 102 A.2d 284 (1954), and 58 Op.

Atty. Gen. 3 (1973) (liquor boards); Art. IV, § 40, of the Maryland Constitution (judges of the orphans’ courts). Many other considerations have been more important than funding in determining the status of a governmental agency or official as State or local. In O & B Inc. v. Md-Nat’l Cap.

P. & P., 279 Md. 459, 462 , 369 A.2d 553 (1977), we stated: “There is no single test for determining whether a governmental body is an agency of the state____ Rather it is necessary to examine the relationship between the state and the governmental entity to determine its status as either a state agency or a county or municipal agency.” In Board v. John K. Ruff, supra, we held that despite a certain amount of county control over the activities of community colleges, and the fact that the State funded only a portion of the costs, the boards of trustees of community colleges were State agencies. The Court relied on the fact that community colleges were ultimately “created and controlled by the State” and that the Board of Trustees’ powers “flowed from public general laws.” 278 Md. at 587 , 366 A.2d at 364 . Similarly in O & B Inc., supra, the Court held that the Maryland-National Capital Park and Planning Commission, a bi-county agency created by the General Assembly, was a state agency for purposes of tort liability. The Court stated ( 279 Md. at 464-465 , 369 A.2d at 556 ): ²⁸⁵ “Like community colleges, the Commission functions only on a regional basis and is subject to some control by the counties within the region ... “Despite this degree of local control, the Commission, like the community colleges, was created by the State and not by the action of . „ .

Counties. The powers and duties of the Commission are set forth in public general laws, and the counties may exercise only that control over the Commission which is expressly permitted by the General Assembly.” These and other eases teach that the question of whether sheriffs and their deputies are State or local officials primarily depends on whether the creation and ultimate control of the offices of sheriff and deputy lie with the State or with local government. The common law office of sheriff is of ancient origin, and the elective office of sheriff has been provided for in Maryland’s Constitutions since 1776. Under the current Constitution, Art. IV, § 44, mandates the election of a sheriff in each county and in Baltimore City.

Section 44 establishes the term of office for sheriff and imposes age and residency requirements on those seeking the office. Furthermore, § 44 provides that the Governor shall appoint a replacement if a sheriff dies, resigns, or cannot serve out Ms term. These constitutional aspects of the sheriff’s office are markedly similar to those of the office of state’s attorney discussed in Valle v. Pressman, supra. 4 Indeed, the Attorney General has, in the past, applied the language of Valle ²⁸⁶ to the office of sheriff and written (50 Op. Atty.

Gen. 346, 347 (1965)): “Article IV, Section 44, of the Maryland Constitution provides for election to the office of sheriff and, in case of a vacancy in such office, for the appointment of a successor by the Governor. It would thus appear that the office of sheriff is clearly analogous to that of State’s Attorney in that it is provided for by the State Constitution, and, notwithstanding the fact that the electorate is not State-wide, the control of the office retained by the Governor, i.e. that he is permitted to fill vacancies in the office justifies our conclusion that a sheriff is a State official.” See also 6 Op. Atty. Gen. 427, 430 (1921).

As with the state’s attorney in Valle , the constitutional status of the sheriff is a particularly important factor leading to the conclusion that a sheriff is a State rather than a local government official. Another factor leading to this conclusion is that the power and authority exercised by sheriffs is controlled by State law. Section 2-309(a) of the Courts and Judicial Proceedings Article provides (emphasis added): “The sheriff of a county and his deputies shall receive the annual salaries provided by this section for performing the duties required of them by the Constitution and the laws of this State.” This Court has frequently pointed out that the authority, duties and functions of a sheriff are controlled by the common law and the General Assembly. Thus, in Mayor & City Council of Baltimore v. State, 15 Md. 376, 488 (1860) (concurring opinion), Chief Judge Le Grand stated in language that has often been repeated: “[T]he Constitution ... does not specify or describe the powers and duties of the sheriff.

These are left to the common law and the Acts of Assembly____ There is nothing to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as sheriff.” ²⁸⁷ See e.g., Soper v. Montgomery County, 294 Md. 331, 337 , 449 A.2d 1158 (1982); Green v. State, 122 Md. 288, 294-296 , 89 A. 608 (1914); Beasly v. Ridout, 94 Md. 641, 656 , 52 A. 61 (1902). See also Crosse v. Board of Elections, 243 Md. 555, 561 , 221 A.2d 431 (1966). In home rule counties like Harford, the General Assembly exercises no such direct control over the powers and duties of officers created by county charters. Not only are the duties of sheriffs subject to modification by the General Assembly, but some of the duties prescribed for sheriffs are statewide in scope rather than confined to the locality in which they generally operate.

Under § 2-301 of the Courts and Judicial Proceedings Article, a sheriff is empowered to “serve papers in a county other than the county of which he is sheriff.” Code (1957, 1988 Repl.Vol.), Art. 75, § 85, provides that State courts may issue process against individuals “directed to the sheriff of the county where such person may reside, and the sheriff shall serve and return such process as if issued by a court of his county.” Also, § 2-404 of the Courts and Judicial Proceedings Article provides that the State's appellate courts “may direct the sheriff to attend the court or perform services for the court.” More generally, as stated in Green v. State, supra, 122 Md. at 295-296 , 89 A. at 610 : “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 ... courts.... “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 ... courts of the State.” The control of the functions of the sheriffs by State common law, by the General Assembly and by the judiciary, ²⁸⁸ coupled with the statewide nature of many of the sheriffs’ duties, strongly reinforce the view that sheriffs are State rather than local government officials. There is a degree of local control over the operation of the sheriff’s office in each county, which results from the provision for local funding. A sheriff is required by an act of the General Assembly to submit his budget to the county in compliance with the county’s budget procedure.

Code (1957, 1978 Repl.Vol., 1988 Cum.Supp.), Art. 24, § 8-101. If a county decides to create its own police department or to use the Maryland State Police, under the “resident trooper” program, 5 as the principal law enforcement entity in the county, the county officials undoubtedly will not fund the sheriff’s office to the same extent that the sheriff’s office would be funded if it were the primary law enforcement agency in the county. 6 As a practical matter, this will affect the law enforcement functions of the sheriff’s office. See Soper v. Montgomery County, supra, 294 Md. at 338-345 , 449 A.2d at 1162-1165 . Nevertheless, county officials may not directly abridge the functions and duties of a sheriff under the common law and enactments of the General Assembly.

As our cases make clear, only the General Assembly can change the duties and functions of the sheriffs. 7 ²⁸⁹ Various enactments of the General Assembly confirm the view that, under Maryland law, sheriffs are State officials instead of local government officials. For example, Maryland’s Public Ethics Law, Code (1957, 1986 Repl.Vol.), Art. 40A, § 1-201(gg), defines a “State official” as including “a person holding office as State’s Attorney, clerk of the circuit court for each county, register of wills, and sheriff.” The Local Government Tort Claims Act, Code (1974, 1984 Repl.Vol., 1988 Cum.Supp.), §§ 5-401 through 5-404 of the Courts and Judicial Proceedings Article, discussed in Part II of this opinion, infra, does not include sheriffs or sheriffs’ offices within the definition of “local government.” A perusal of the index to the Maryland Code, under “Sheriffs,” discloses a multitude of State statutes regulating every aspect of the sheriffs’ operations in the same way that other State officials or employees are regulated. For the foregoing reasons we conclude that, under Maryland law, sheriffs are State officials and/or employees. This conclusion does not mean that, for some purposes and in some contexts, a sheriff may not be treated as a local government employee.

In addition to matters relating to the local funding of sheriffs’ offices, a sheriff may be given certain benefits given to local government employees. For example, a sheriff may be included under a county-estab ²⁹⁰ lished pension plan. See, e.g., Code (1957, 1981 Repl.Vol.), Art. 25, § 3(g-1). Having determined that a sheriff is a State rather than a local official, we must decide whether the same is true of deputy sheriffs.

There is a significant difference between the two. The office of sheriff is an elective office created by the Constitution, while the office of deputy is appointive and is not established in the Constitution. See Turner v. Holtzman, 54 Md. 148, 159 (1880). Despite this difference a deputy sheriff has generally been viewed as the alter ego of the sheriff. “In the eyes of the law the sheriff or constable and his deputy are one officer.” 1 Anderson on Sheriffs, Coroners, and Constables, § 78 (1941).

In Myers v. Smith, 27 Md. 91, 113 (1867), this Court pointed out that where a warrant is directed to a sheriff, “that officer may execute the warrant by his deputy, whose acts must be regarded as those of the sheriff himself.” Similarly, in Turner v. Holtzman, supra, 54 Md. at 159 , the Court said that “a deputy sheriff of Baltimore County ... posses[es] authority such as the sheriff himself could exercise.” See also, Soper v. Montgomery County, supra, 294 Md. at 338 , 449 A.2d at 1161-1162 ; Ex Parte Estate of Bristor, 115 Md. 614, 621 , 81 A. 25 (1911). Because a deputy performs the same duties as the sheriff and because those duties are prescribed by State law, it seems clear that deputy sheriffs are State rather than county employees. Additional support for this view stems from the fact that, at the same time the deputy sheriff enjoys the power and authority wielded by the sheriff, the deputy remains subject to the direction and control of the sheriff. Among the common-law powers and duties of a sheriff was the duty to appoint, direct, and remove deputies.

Anderson on Sheriffs, supra, §§ 60, 85, 145. These common law duties have been regulated somewhat by the General Assembly. Thus, statutes prescribe the number of deputies a sheriff may hire (e.g., § 2-309(n)(1) of the Courts and Judicial Proceedings Article), mandate the training deputies are to receive (Art. 41, § 4-201), and limit a sheriffs ²⁹¹ power to fire a deputy at will (Art. 27, § 727(b)-§ 734D). See also, Miner v. Novotny, 304 Md. 164 , 498 A.2d 269 (1985).

Nevertheless, this regulation is by State laws and not local ordinances. 8 We therefore conclude that deputies, like sheriffs, are State employees. 9 II. We now address the second certified question: whether, under Maryland law, “Harford County or the State of Maryland is obligated to fund the expenses associated with claims for liability involving the Harford County Sheriff, the Deputy sheriffs or the Sheriffs Office, including the cost of liability insurance, the costs of defending suits brought against them and the payment of any settlements and judgments.” Of course, in the absence of statutory or contractual provisions to the contrary, a public or private entity is ordinarily not vicariously liable for, or obligated to pay expenses associated with, the tortious acts of those who are not its employees. See, e.g., Brady v. Ralph Parsons Co., 308 Md. 486, 511-513 , 520 A.2d 717 (1987); Rowley v. City of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986); Cox v. Prince George’s County, 296 Md. 162, 165 , 460 A.2d 1038 ²⁹² (1983). More specifically, counties and municipalities in Maryland are generally not liable under the doctrine of respondeat superior for the tortious acts of State officials or State employees acting in the scope of their employment.

Clea v. City of Baltimore, supra, 312 Md. at 668-669 , 541 A.2d at 1306 , and cases there cited. In the recent Clea case, we stated {ibid.): “[T]he Baltimore City Police Department is a state agency. Thus, as a matter of Maryland law, no liability ordinarily attaches to Baltimore City under the doctrine of respondeat superior for the torts of Baltimore City police officers acting within the scope of their employment.” Consequently, Harford County would ordinarily bear no common-law liability for the tortious acts of the Sheriff or deputy Sheriffs, who are State employees. The General Assembly could, of course, by statute make counties or municipalities liable for the tortious acts of State employees.

Thus, § 5-403 of the Local Government Tort Claims Act, supra, enacted in 1987, renders counties liable under certain circumstances for judgments against county employees and some state agency personnel. The Act requires localities to pay, up to a specified amount, judgments rendered against “local government” employees based on non-malicious tortious acts. Section 5-401(d) of the Act defines “local government” as follows: “(d) ... ‘Local government’ means: (1) A chartered county established under Article 25A of the Code; (2) A code county established under Article 25B of the Code; (3) A board of county commissioners established or operating under Article 25 of the Code; (4) Baltimore City; (5) A municipal corporation established or operating under Article 23A of the Code; ²⁹³ (6) The Maryland-National Capital Park and Planning Commission; (7) The Washington Suburban Sanitary Commission; (8) A community college or board of trustees for a community college established or operating under Title 16 of the Education Article; (9) A county public library or board of trustees of a county public library established or operating under Title 23, Subtitle 3 of the Education Article; (10) The Enoch Pratt Free Library or board of trustees of the Enoch Pratt Free Library; (11) The Washington County Free Library or the board of trustees of the Washington County Free Library; (12) A special taxing district; (13) A nonprofit community service corporation incorporated under Maryland law that is authorized to collect charges or assessments; and (14) Housing authorities created under Article 44A of the Code.” This definition specifically includes entities that had previously been held to be “State agencies” for purposes of tort liability and immunity from tort liability. See Md.-Nat'l Cap.

P. & P. Comm’n v. Kranz, supra, 308 Md. at 622-626, 521 A.2d at 731-733 ; Katz v. Washington Suburban Sanitary Commission, supra, 284 Md. at 509 , 397 A.2d at 1032 ; O & B Inc. v. Maryland Nat'l Capital Park, Etc., supra, 279 Md. at 466 , 369 A.2d at 556 ; Board v. John K. Ruff, supra, 278 Md. at 587 , 366 A.2d at 364 . By expressly including these State agencies and their employees within the scope of the Local Government Tort Claims Act, the Legislature implicitly excluded other State entities and officials such as sheriffs and deputies. 10 As we stated in Office ²⁹⁴ and Prof. Employees Int’l v. MTA, 295 Md. 88, 96 , 453 A.2d 1191 (1982), “It is a settled principle of statutory construction that the Legislature’s enumeration of one item, purpose, etc., ordinarily implies the exclusion of all others.” See also Goldberg v. State, 315 Md. 653, 662 , 556 A.2d 267 (1989). While the Local Government Tort Claims Act imposes no obligation on counties to pay for liability claims rendered against sheriffs or deputies, the Attorney General contends that § 2-309 of the Courts and Judicial Proceedings Article obliges counties to pay for all expenses incurred in connection with the operation of the sheriffs’ offices, including liability costs.

Section 2-309 states in relevant part as follows (emphasis added): “§ 2-309. Salaries and expenses; deputies; employees; equipment. (a) In general.—The sheriff of a county and his deputies shall receive the annual salaries provided by this section for performing the duties required of them by the Constitution and the laws of this State. They shall be reimbursed for expenses as provided by law. “(aa) Office and