Thornton Mellon v. Frederick Cnty. Sheriff

Thornton Mellon LLC, et al. v. Frederick County Sheriff, et al., No. 51, September Term, 2021 TAX SALE FORECLOSURE CASES – WRITS OF POSSESSION – EXPRESS AND IMPLIED POWERS OF SHERIFFS – Court of Appeals held that sheriffs did not exceed express or implied authority in adopting policies on how to serve writs of possession in tax sale foreclosure cases and that, in execution of writs of possession, sheriffs’ mover policy and weather policy are valid exercise of powers fairly implied by sheriffs’ expressly given duties and authority. Circuit Court for Frederick County Case No. C-10-CV-18-000976 Circuit Court for Baltimore County IN THE COURT OF APPEALS Case No. 03-C-18-011990 OF MARYLAND Circuit Court for Anne Arundel County Case No. C-02-CV-19-002613 No. 51 Circuit Court for Howard County Case No. C-13-CV-19-001149 September Term, 2021 Argued: June 1, 2022 ______________________________________ THORNTON MELLON LLC, ET AL. v. FREDERICK COUNTY SHERIFF, ET AL. ______________________________________ Watts Hotten Booth Biran Eaves McDonald, Robert N. (Senior Judge, Specially Assigned) Getty, Joseph M. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: July 12, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-07-12 08:59-04:00 Suzanne C. Johnson, Clerk In this case, tax sale buyers brought actions for declaratory and injunctive relief in circuit courts, alleging that sheriffs in Maryland exceeded their express and implied authority by adopting policies concerning how to execute writs of possession in tax sale foreclosure cases.

The case involves a challenge to two policies used by sheriffs in evicting people from their homes when a tax sale buyer obtains a judgment foreclosing the right of redemption with respect to a property and the homeowner does not redeem the property. Under the first policy (“the mover policy”), when serving writs of possession, sheriffs require tax sale buyers to provide movers to remove personal property from the premises at issue. Under the second policy (“the weather policy”), during bad weather conditions, sheriffs postpone the service of writs of possession.1 We must determine whether the two policies followed by sheriffs for the execution of writs of possession constitute a valid exercise of powers fairly implied by the sheriffs’ expressly given authority. The power of a government official or agency to do something can be either express or implied.

An express power is “[a] power explicitly granted by a legal instrument.” Express Power, Black’s Law Dictionary (11th ed. 2019). By contrast, an implied power is a “power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.” Implied Power, Black’s Law Dictionary (11th ed. 2019). “Generally, [] a government official or agency has reasonable discretion to carry out fairly 1 This case also involved a third policy (“the sixty-day policy”) under which sheriffs did not serve writs of possession that were more than sixty days old. The Court of Special Appeals determined that the sixty-day policy was invalid because it exceeded the sheriffs’ fairly implied powers. See Thornton Mellon, LLC v. Frederick Cnty.

Sheriff, 252 Md. App. 320 , 339, 258 A.3d 1032 , 1043-44 (2021). No sheriff petitioned or cross-petitioned for a writ of certiorari seeking our review of the holding. implied powers incident to those duties or authority expressly granted.” Town of La Plata v. Faison-Rosewick LLC, 434 Md. 496, 523 , 76 A.3d 1001, 1017 (2013) (cleaned up). In the Circuit Courts for Anne Arundel, Baltimore, Frederick, and Howard Counties, one or all of Thornton Mellon LLC, Ty Webb LLC, Danny Noonan LLC, and Al Czervik LLC (together, “Thornton Mellon”), Petitioners,2 tax sale buyers, sued the sheriffs of those jurisdictions (together, “the Sheriffs”), Respondents, seeking declaratory judgment that the Sheriffs’ mover policy and weather policy were void and injunctions against enforcement of the policies.3 In Baltimore and Frederick Counties, Thornton Mellon LLC, which describes itself in the complaints as “a large institutional tax sale buyer,” was the only plaintiff. In Anne Arundel County, all of the entities were plaintiffs and in the complaint, Ty Webb LLC, Danny Noonan LLC, and Al Czervik LLC are described as entities to which 2 In their opinions, the Circuit Court for Baltimore County and the Court of Special Appeals observed that Petitioners were evidently named after characters in the popular 1980s movies Back to School and Caddyshack.

See Thornton Mellon, LLC, 252 Md. App. at 326 n.3, 258 A.3d at 1036 n.3. IMDb (an abbreviation of “Internet Movie Database”) describes Thornton Melon—the main character of Back to School—as “a fun[-]loving and obnoxious rich businessman[.]” IMDb, Back to School, https://www.imdb.com/title/ tt0090685/ [https://perma.cc/A548-UUFF]. IMDb describes Ty Webb, Danny Noonan, and Al Czervik—characters in Caddyshack—as a “suave golf guru[,]” a “young caddie[,]” and a “distasteful, filthy rich construction magnate,” respectively. IMDb, Caddyshack, https://www.imdb.com/title/tt0080487/ [https://perma.cc/NDD3-4AUD].

As the Court of Special Appeals stated: “Thornton Mellon is [] entitled to name its entities howsoever it wishes.” Thornton Mellon, LLC, 252 Md. App. at 326 n.3, 258 A.3d at 1036 n.3. These are the names under which Thornton Mellon has chosen to engage in the tax sale foreclosure business. 3 In addition, in the Circuit Court for Montgomery County, Al Czervik LLC filed a substantively identical complaint against the Montgomery County Sheriff. See Al Czervik LLC v. Montgomery Cnty. Sheriff, No. 475730-V (Cir. Ct. Montgomery Cnty.).

The circuit court stayed the case pending the resolution of this one. -2- Thornton Mellon LLC “regularly assigns Judgments Foreclosing Rights of Redemption and tax sale certificates.” In Howard County, Al Czervik LLC was the only plaintiff. In each case, the circuit court concluded that the mover policy and the weather policy are valid and enforceable. Thornton Mellon appealed, and the Court of Special Appeals agreed with the conclusions of the circuit courts. Thornton Mellon filed a petition for a writ of certiorari, which we granted.

We hold that the Sheriffs have the implied authority to adopt policies for how to serve writs of possession in tax sale foreclosure cases and that, in the execution of writs of possession, both the mover policy and the weather policy constitute a valid exercise of powers fairly implied by the Sheriffs’ expressly given duties and authority. BACKGROUND Complaints and Motions to Dismiss As explained above, in the Circuit Courts for Anne Arundel, Baltimore, Frederick, and Howard Counties, Thornton Mellon filed complaints against each of the Sheriffs, seeking declaratory judgment and injunctive relief. In each complaint, Thornton Mellon alleged that the Sheriffs lacked a legal basis for adopting the mover and weather policies and that the policies should be declared void and unenforceable. Thornton Mellon characterized the mover policy as a practice of requiring it to bring movers when the Sheriffs served writs of possession and characterized the weather policy as a practice of the Sheriffs refusing to serve writs of possession during certain months of the year when the weather is bad.

Thornton Mellon alleged that the mover policy improperly caused it to incur additional costs and was not uniformly applied in all jurisdictions or with respect to -3- all plaintiffs who obtained writs of possession. Thornton Mellon alleged that the weather policy infringed on its right to prompt enforcement of writs of possession. Thornton Mellon contended that neither the mover policy nor the weather policy is codified in any statute, and that both policies are unconstitutional. The Sheriffs moved to dismiss the complaints and alternatively moved for summary judgment.

The Sheriffs pointed out that the mover policy exists because a tax sale buyer is entitled only to possession of the real property on which there is a tax lien and not to any personal property that may be on the premises. The Sheriffs contended that the mover requirement is part of a “Statewide policy and practice of Maryland sheriffs that prevents the unlawful conversion[4] of personal property” in the service of writs of possession for real property. The Sheriffs argued that not following the mover policy would, in most jurisdictions, result in them engaging in conversion of residents’ personal property.5 With respect to the weather policy, the Sheriffs contended that they have an unwritten policy to postpone the service of writs of possession in extreme weather 4 Conversion is “an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another’s right, whereby that other person is deprived of the use and possession of the property.” Conversion, Black’s Law Dictionary (11th ed. 2019). 5 Unlike other jurisdictions, Baltimore City and Prince George’s County have ordinances that address the issue of personal property left on a foreclosed or leased property when the resident or tenant is subject to eviction. Balt.

City Code, Art. 13, § 8B-4(a) states that “[a]ll personal property in or about [a] foreclosed property at the time that [a] writ of possession is executed is abandoned.” Prince George’s Cnty. Code, § 13-164(a) concerns service of warrants of restitution and states in pertinent part that “the landlord shall dispose of the property of a tenant. In no event may any of the tenant’s property be placed on a public right-of-way or on any public property. Any property removed from the leased premises pursuant to a properly issued warrant of restitution shall be deemed abandoned.” -4- conditions because of the need for consistency in the service of writs of possession and warrants of restitution6 and that to do otherwise and evict people during bad weather would be “inhumane, dangerous, and/or impractical.” The Sheriffs argue that the weather policy is valid and that they do not need express legal authorization to employ a policy of serving writs of possession in the same manner as warrants of restitution, the service of which can be stayed in the event of extreme weather conditions under Md. Code Ann., Real Prop.

(1974, 2015 Repl. Vol.) (“RP”) § 8-401(f)(2)(I).7 The Sheriffs maintain that evicting residents without using the weather policy “would put vulnerable people at potentially life- threatening risk” “who may not have immediate access to warm and dry shelter” during extreme weather conditions. The Sheriffs contended that in seeking to have the weather policy declared invalid, Thornton Mellon asked the circuit courts to uphold the “uncompassionate and inhumane treatment of Maryland citizens during the eviction 6 A warrant of restitution—also known as a writ of restitution—is a warrant or writ issued to “enforc[e] a civil judgment in a forcible-entry-and-detainer action[.]” Writ of Restitution, Black’s Law Dictionary (11th ed. 2019). A forcible-entry-and-detainer action is “[a] quick and simple legal proceeding for regaining possession of real property from someone who has wrongfully taken, or refused to surrender, possession.” Forcible Entry and Detainer, Black’s Law Dictionary (11th ed. 2019).

An ejectment action is an example of a forcible-entry-and-detainer action. See id. A distinction between a writ of possession and a warrant of restitution is the type of plaintiff involved. As its name suggests, a warrant of restitution is a method for possession of property to be restored to a landlord.

See Md. Code Ann., Real Prop. (1974, 2015 Repl. Vol.) (“RP”) § 8-216(b)(2)(i). By contrast, a writ of possession is a method for possession of property to be transferred to a party who typically never possessed it in the first place, such as a ground lease holder, see RP § 8-807(i), a mortgage foreclosure sale buyer, see RP § 7-105.11(d)(1), or a tax sale buyer, see Md. Code Ann., Tax-Prop.

(1986, 2019 Repl. Vol.) § 14-850. 7 At the time of the filing of the motions to dismiss, what is now RP § 8-401(f) was RP § 8-401(d). -5- process.” Thornton Mellon filed oppositions to the motions to dismiss, contending that the motions should be treated as requests for summary judgment because they referred to facts outside of the complaints. Thornton Mellon argued that summary judgment was inappropriate because there were disputes of material fact as to, among other things, the specifics of the mover policy, and that no law authorized the Sheriffs to adopt the mover policy or the weather policy.8 The Circuit Courts for Anne Arundel, Baltimore, and Frederick Counties conducted hearings. The Circuit Courts for Anne Arundel and Frederick Counties issued opinions granting summary judgment in the Sheriffs’ favor, declaring that the mover policy and the weather policy were valid and enforceable, and denying the relief sought by Thornton Mellon.

The Circuit Court for Howard County reached the same conclusion and issued an order adopting the reasoning of the opinion issued by the Circuit Court for Frederick County. The Circuit Court for Baltimore County issued a Decision and Order declaring that the mover policy and the weather policy were valid and enforceable and denying the request for relief. Thornton Mellon filed notices of appeal. Affidavits In the circuit courts, the Sheriffs attached to each motion to dismiss an affidavit in 8 In Baltimore and Frederick Counties, the Sheriffs filed supplements to the motions to dismiss.

Thornton Mellon filed oppositions to the supplements, arguing, among other things, that the Sheriffs exceeded their authority by adopting the mover policy and the weather policy. In addition, in Anne Arundel and Frederick Counties, Thornton Mellon filed supplements to the oppositions to the motions to dismiss. The Anne Arundel County Sheriff filed a response to the supplement. -6- which Brian Andre, the Acting Lieutenant for the Anne Arundel County Sheriff, described the mover policy and a second affidavit in which Acting Lieutenant Andre or another officer serving under a Sheriff described the weather policy in the officer’s jurisdiction. With respect to the weather policy, the Sheriff in Frederick County submitted the affidavit of Adam Gregory, a sergeant of the Frederick County Sheriff.

In Baltimore County, Deputy Chief Ruby Hernandez submitted an affidavit. The Howard County Sheriff relied on Acting Lieutenant Andre’s affidavits concerning both the mover and weather policies. All of the officers’ affidavits indicate that the Sheriffs serve warrants of restitution and writs of possession in the same manner. In other words, the affidavits state that the Sheriffs follow the same procedures when performing evictions9 to secure possession of real property for both landlords (who are plaintiffs in landlord-tenant cases) and tax sale buyers (who are plaintiffs in tax sale foreclosure cases).

Affidavit Describing the Mover Policy In his affidavit describing the mover policy, Acting Lieutenant Andre stated that over the previous eight months, problems had arisen with writs of possession sought by Thornton Mellon. Acting Lieutenant Andre described the problems as including that writs of possession are typically issued by the Clerk but that in the preceding eight months Thornton Mellon had requested that judges issue writs of possession which did not 9 Although the terms “evict” and “eviction” are most often used in landlord-tenant cases, they are not specific to such cases. To evict is “[t]o expel (a person, esp[ecially] a tenant), from real property, usu[ally] by legal process.” Evict, Black’s Law Dictionary (11th ed. 2019). An eviction is “[t]he act or process of legally dispossessing a person of land or rental property.” Eviction, Black’s Law Dictionary (11th ed. 2019). -7- resemble in substance writs issued by the Clerk.

Acting Lieutenant Andre averred that the writs recently authored by Thornton Mellon would include taking possession of personal property as well as real property, whereas the writs issued by the Clerk did not include taking possession of personal property. Acting Lieutenant Andre averred that the Thornton Mellon writs relieved Thornton Mellon of the requirement of providing movers to remove personal property during the service of writs of possession, making it impossible for the Sheriff to serve a writ of possession without transferring someone’s personal property to Thornton Mellon. Acting Lieutenant Andre stated that he believed that the judges who had signed this type of writ of possession were not aware of the key differences. Acting Lieutenant Andre provided a link to a webpage on the website of Anne Arundel County summarizing the Sheriff’s policy and practice of requiring movers to remove personal property during the service of writs of possession and warrants of restitution.

See Anne Arundel Cnty., Md., Landlord - Tenant Matters (2020), https://www.aacounty.org/services-and-programs/landlord---tenant-matters [https:// perma.cc/2JKN-GBGL] (“the Anne Arundel County Webpage”). According to the Anne Arundel County Webpage—a printout of which was attached to Acting Lieutenant Andre’s affidavit—“[a] landlord is responsible for providing an adequate number of movers and exercising reasonable care in removing a tenant’s property from a location. Under most circumstances, if a landlord has failed to provide enough movers to conclude an eviction within 2 hours, the eviction will be rescheduled.” The Anne Arundel County Webpage also states that “[a]ll personal property except that which may pose a public safety threat is to be placed on the curb of the nearest public roadway and once there it is the tenant’s -8- responsibility to safeguard the property.” According to the Anne Arundel County Webpage, “failure to remove a tenant’s evicted property from a County right-of-way within 48 hours will result in removal by the County Department of Public Works.”10 Acting Lieutenant Andre averred that, before setting the number of movers required for serving a writ, deputies visit the premises to assess its size, its proximity to the nearest public road, and the amount of personal property there. The Sheriff does not require a plaintiff to provide movers where there is no personal property on the premises or the only personal property on the premises is trash.

In other words, the Sheriff requires a plaintiff to provide movers where there is personal property on the premises that is not trash. To determine how many movers are needed, the Sheriff uses a formula and criteria similar to that developed by the Montgomery County Sheriff. Acting Lieutenant Andre provided a link to a webpage on the website of Montgomery County that contains the formula and criteria. See Montgomery Cnty.

Gov’t, Eviction Section (2022), https://www. montgomerycountymd.gov/sheriff/sections/eviction-section.html [https://perma.cc/5G8J- W33T] (“the Montgomery County Webpage”). According to the Montgomery County Webpage—a printout of which was attached to Acting Lieutenant Andre’s affidavit—a landlord must provide: 10 The Anne Arundel County Webpage observes that this is pursuant to Anne Arundel Cnty. Code (“AACC”) § 13-1-106. AACC § 13-1-106(a) states that “[a]n owner of rental real property may not dispose of, store, or abandon the personal property of an evicted tenant on County rights-of-way, easements, or other County property for more than 48 hours after the date of the eviction.” AACC § 13-1-106(b) states in pertinent part that “[t]he Department may remove and dispose of all personal property that is on County property in violation of this section, and the Department shall bill the owner of the rental real property for all costs incurred by the County[.]” -9-  A moving crew of at least:  8 persons for a 1-2 bedroom apartment  10 persons for a 3 bedroom apartment  10-12 persons for a townhouse  12-15 persons for a single family home  15-25 persons for a retail business  and any necessary moving equipment.

More people may be required depending on the size and nature of the property.  A person who can defeat the locks may be needed in order to gain entry.  A truck or means to get tenant’s personal property to the nearest public right of way.  Tools in case something has to be disassembled before it can be removed.  Plastic bags for clothing and other small items. The Montgomery County Webpage also states that “[u]navailability of sufficient or timely resources may result in the eviction being canceled.” (Emphasis omitted). Acting Lieutenant Andre averred that, to the best of his knowledge and belief, the Sheriff’s mover policy in Anne Arundel County is the Statewide policy and practice of all sheriffs in Maryland, with some slight variations. Acting Lieutenant Andre averred that the purpose of the mover policy is to avoid transferring residents’ personal property to plaintiffs, i.e., tax sale buyers, without any legal authority for doing so.

Affidavits Describing the Weather Policy Acting Lieutenant Andre’s affidavit describing the weather policy11 and the affidavit by Sergeant Gregory, an officer with the Frederick County Sheriff’s Office, stated that the Sheriffs of those jurisdictions do not serve writs of possession or warrants of 11 As explained above, Acting Lieutenant Andre’s affidavit describing the weather policy in Anne Arundel County was attached to the memorandum in support of the motion to dismiss filed in Howard County. - 10 - restitution during extreme weather conditions. Similarly, Deputy Chief Hernandez averred that the Sheriff in Baltimore County has a practice of not serving writs of possession or warrants of restitution when Baltimore County courthouses and other Baltimore County government buildings are closed due to inclement weather. All three officers’ affidavits stated that, in an instance of extreme or inclement weather, the Sheriff will serve a warrant of restitution or writ of possession “as soon as weather conditions improve.” All three officers’ affidavits also stated that “[t]he Sheriff does not generally refuse to serve writs during months when the weather is poor.” In other words, the officers denied that their offices refuse to serve writs during certain months.12 Acting Lieutenant Andre averred that the Anne Arundel County Sheriff follows the weather policy in that jurisdiction “for reasons relating to compassion, community relations, and practicality.” Similarly, Sergeant Gregory averred that the Frederick County Sheriff follows the weather policy in that jurisdiction “for reasons relating to human welfare, community relations, and practicality.” Acting Lieutenant Andre, Sergeant 12 Serving as another example of a weather policy, the Montgomery County Webpage describes its policy as follows: If it is raining or snowing at the scheduled time of the eviction, the eviction will not proceed. However, if precipitation starts after an eviction has started, the eviction will continue until completion.

I[f] the predicted high temperature from the national weather broadcast on the scheduled eviction date is 32 degrees or lower, evictions for that day will be canceled. . . . If an eviction is canceled as a result of bad weather it will be rescheduled as soon as possible. In this case, the three officers’ affidavits describing the weather policy did not mention the Montgomery County Webpage. The information concerning the Montgomery County Webpage is included as an example of the weather policy used by the Sheriff in that county. - 11 - Gregory, and Deputy Chief Hernandez each averred that to their knowledge the Sheriff in their jurisdiction never had a dispute with Thornton Mellon over the weather policy.

Opinion of the Court of Special Appeals The Court of Special Appeals granted a motion by the Sheriffs to consolidate the four appeals, affirmed each circuit court’s grant of judgment as to the mover and weather policies, and remanded the cases to the circuit courts with instructions to issue declarations consistent with the opinion.13 See Thornton Mellon, LLC v. Frederick Cnty. Sheriff, 252 Md. App. 320 , 339-40, 258 A.3d 1032 , 1044 (2021). The Court of Special Appeals held that sheriffs have powers fairly implied by their express powers and duties and that the mover and weather policies are valid exercises of such fairly implied powers. See id. at 339 , 258 A.3d at 1044.

The Court of Special Appeals determined that neither the mover policy nor the weather policy was inconsistent with the Sheriffs’ duty under Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol.) (“CJ”) § 2-301(a) to serve a writ of possession according to its instructions within the time set by the trial court.

See id. at 334- 35, 258 A.3d at 1041-42. The Court of Special Appeals explained that there was no reason not to conclude that, like all other public officials, sheriffs have powers fairly implied by their express powers and duties. See id. at 332-33, 258 A.3d at 1039-40. Addressing the mover policy, the Court of Special Appeals concluded that it was 13 As discussed above, the Court of Special Appeals reversed each circuit court’s determination as to the validity of a policy under which the Sheriffs did not serve writs of possession more than sixty days old.

The Court of Special Appeals explained that because a writ of possession issued to a tax sale buyer does not expire, the sixty-day policy as applied to writs of possession was inconsistent with Maryland law. - 12 - not arbitrary or capricious for the Sheriffs to choose to serve writs of possession in tax sale foreclosure cases in the same way that sheriffs are required to serve writs of restitution in landlord-tenant cases, where, under what is now RP § 8-401(f)(1)(i), a sheriff must require a landlord to have personal property removed from the premises. See id. at 334-35 & n.12, 258 A.3d at 1041 & n.12. The Court of Special Appeals disagreed with Thornton Mellon’s argument that the mover policy is inconsistent with the tax sale foreclosure process because it increases Thornton Mellon’s costs and discourages tax sale buyers from participating in the foreclosure process. See id. at 335, 258 A.3d at 1041.

The Court of Special Appeals explained that the mover policy does not stop the tax sale foreclosure process from proceeding and that the record did not establish that the costs of the mover policy are a disincentive for would-be tax sale buyers. See id. at 335, 258 A.3d at 1041. Addressing the weather policy, the Court of Special Appeals pointed out that, under what is now RP § 8-401(f)(2)(i), service of a warrant of restitution may be stayed due to extreme weather conditions. See id. at 336-37 & n.15, 258 A.3d at 1042 & n.15.

The Court of Special Appeals agreed with the Sheriffs that refraining from following the weather policy in connection with writs of possession would be inhumane, dangerous, and impractical. See id. at 337, 258 A.3d at 1042. The Court of Special Appeals was unpersuaded by Thornton Mellon’s assertion that summary judgment was unwarranted because of factual disputes concerning the mover policy and the weather policy. See id. at 336-37, 258 A.3d at 1042-43.

The Court of Special Appeals determined that there was no need for an affidavit concerning the mover policy in each jurisdiction because Thornton Mellon did not allege that the policy - 13 - substantively varied by jurisdiction. See id. at 336, 258 A.3d at 1042. The Court of Special Appeals concluded that Thornton Mellon’s assertions concerning the weather policy pertained only to the language used to describe the policy and did not rise to the level of a genuine dispute of material fact. See id. at 337, 258 A.3d at 1042.

Petition for a Writ of Certiorari Thornton Mellon petitioned for a writ of certiorari, raising the following four issues: 1. Whether Sheriffs who are commanded to enforce writs of possession issued in a tax sale proceeding have the authority to impose on tax sale purchasers an arbitrary “Mover Policy,” which is not authorized by the Legislature, is unduly burdensome on tax sale purchasers, and does no more to accomplish the purported goal of the policy than substantially less burdensome options, including those which have been enacted by local governments? 2. Whether Sheriffs who are commanded to enforce writs of possession issued in tax sale proceedings have the authority to impose on tax sale purchasers an undefined “Weather Policy,” which is not authorized by the Legislature and substantially burdens tax sale purchasers who are subject to the whims of the Sheriffs and their deputies executing their writs? 3. Where the Legislature has codified statutes governing the eviction process in tax sale proceedings, do the Sheriffs have the “fairly-implied power” to enact their own unwritten policies concerning the eviction process, which are not authorized by nor consistent with the policies set forth by the Legislature, and then rely upon those unwritten policies as a basis to abdicate their statutory obligation to enforce writs of possession? 4.

Did the [Court of Special Appeals] err in holding that there was no genuine dispute of material fact regarding the content of the Sheriffs’ Policies? We granted the petition. See Thornton Mellon LLC v. Frederick Cnty. Sheriff, 476 Md. 585 , 264 A.3d 1283 (2021). - 14 - DISCUSSION14 The Parties’ Contentions Thornton Mellon contends that the Court of Special Appeals erred in holding that the Sheriffs have the fairly implied power to adopt mover and weather policies.

Thornton Mellon argues that a sheriff’s role in serving process is a ministerial duty as to which they have almost no discretion, and that the Sheriffs in this case lacked the ability to adopt the mover policy and the weather policy, which it characterizes as arbitrary and unauthorized by case law or statute. Thornton Mellon asserts that this is demonstrated by CJ § 2-301(a), which provides that a “sheriff shall serve all papers directed to him according to their instructions, within the time set by the court.” Thornton Mellon contends that the plain language and legislative history of RP § 8-401, which addresses the execution of warrants of restitution in extreme weather and the removal of a tenant’s personal property, demonstrates that the statute applies only to the service of warrants of restitution in landlord-tenant cases, not to writs of possession in tax sale foreclosure cases. Thornton Mellon argues that RP § 8-401 does not provide a basis for either the mover policy or the weather policy. Likewise, Thornton Mellon contends that nothing in Maryland Rule 2-647, which authorizes a clerk to issue a writ of possession directing the sheriff to place a party in possession of real property, gives the Sheriffs the authority to do anything beyond placing parties in possession of the property, i.e., the Rule does not expressly authorize the mover 14 Although the petition for a writ of certiorari included four questions presented, because of the interrelated nature of the questions, we address them together. - 15 - and weather policies.

Thornton Mellon also points out that Maryland Rule 2-641, which it acknowledges has no application to the service of writs of possession and instead applies to writs of execution,15 contemplates that sheriffs may be instructed to remove personal property from premises and are authorized to require a bond to cover their expenses. According to Thornton Mellon, because Maryland Rule 2-647 provides no authorization to require a bond, a sheriff cannot require a party to pay anything more than a fee for the writ of possession and cannot require payment to a third-party moving company. Thornton Mellon contends that the mover policy is not necessary to avoid conversion of residents’ personal property because it is an incorrect assumption that personal property left on a premises will somehow be deemed converted when the premises is placed under its control. Thornton Mellon asserts that placing a tax sale buyer in possession of real property where personal property remains on the premises does not satisfy the elements of the tort of conversion as to the personal property.

In addition, Thornton Mellon maintains that the mover policy subjects tax sale buyers to substantial unnecessary costs and does not serve to protect residents’ personal property. Thornton Mellon maintains that its position is not that there should be no policy regarding serving writs of possession in extreme weather conditions, but rather that such a policy must be set by an entity with policymaking authority, not the Sheriffs. In addition, 15 A writ of execution—also known as an execution writ, an execution, an execution of judgment, a judgment execution, a general execution, or fieri facias—is “[a] court order directing a sheriff or other officer to enforce a judgment, usu[ally] by seizing and selling the judgment debtor’s property <the court issued the execution authorizing seizure of the car>[.]” Execution, Black’s Law Dictionary (11th ed. 2019). - 16 - Thornton Mellon asserts that the weather policy is unclear and not employed consistently across the State, and that the Sheriffs have engaged in “arbitrary ‘rulemaking.’” Thornton Mellon argues that because under RP § 8-401(f)(2) only administrative judges may stay service of warrants of restitution during extreme weather conditions, RP § 8-401(f)(2) does not give sheriffs the authority to refuse to serve writs of possession due to extreme weather. Thornton Mellon maintains that the Sheriffs do not have the implied power to enforce the weather policy, as the Sheriffs do not have such power in landlord-tenant matters.

Finally, Thornton Mellon asserts that summary judgment was inappropriate because there were genuine disputes of material fact concerning the content of the mover policy and the weather policy. Thornton Mellon maintains that there was no evidence concerning the substance of the mover policy in Baltimore, Frederick, and Howard Counties, as the counties relied on the affidavit of Acting Lieutenant Andre, an officer from Anne Arundel County. Thornton Mellon argues that there was no evidence concerning the weather policy in Howard County, as the Sheriff submitted only the affidavit of Acting Lieutenant Andre, and that there were disputes of fact concerning the weather policy in Anne Arundel, Baltimore, and Frederick Counties. The Sheriffs respond that, as government officials, they are tasked with serving writs of possession and have the “reasonable discretion to carry out ‘fairly implied’ powers incident to those duties or authorities expressly granted.” The Sheriffs contend that their implied authority is limited only to the extent that it must be exercised reasonably and not arbitrarily or capriciously.

The Sheriffs argue that it is reasonable for them to avoid serving two identical forms of judicial process—writs of possession and warrants of restitution— - 17 - in an inconsistent manner. The Sheriffs assert that by adopting the mover policy and the weather policy, they serve writs of possession in a manner that is consistent with the service of warrants of restitution and that they have the implied power to bring such consistency to the service of judicial process. The Sheriffs contend that the mover policy is necessary to avoid converting residents’ personal property, which is not subject to writs of possession in tax sale foreclosure cases. The Sheriffs assert that, if they did not follow the mover policy, residents could sue the Sheriffs for conversion, and it would not be a defense that the Sheriffs acted in good faith.

The Sheriffs maintain that RP § 8-401(f)(1)(i) reflects a public policy that when a tenant is evicted from a property, the tenant’s personal property is to be removed and not left on the premises to be considered abandoned. The Sheriffs point out that Baltimore City is a jurisdiction with an exception to this rule, as its local law expressly provides that “[a]ll property in or about leased premises at the time that the warrant of restitution is executed is abandoned.” Balt. City Code, Art. 13, § 8A-4(a). The Sheriffs contend that the weather policy is necessary to avoid exposing vulnerable individuals who may not have immediate access to shelter to the risks of illness, injury, or death.

The Sheriffs argue that RP § 8-401(f)(2) reflects a public policy not to evict residents during extreme weather conditions, and that the legislative history of the provision demonstrates that the General Assembly intended for sheriffs not to proceed with evictions during extreme weather conditions. The Sheriffs maintain that Thornton Mellon is not entitled to relief because they brought a facial challenge (as opposed to an as-applied challenge) to the mover policy and - 18 - the weather policy and Thornton Mellon has failed to establish that there is no set of circumstances under which the policies would be valid. The Sheriffs argue that this Court has never interpreted CJ § 2-301(a) or Maryland Rule 2-647 (on which Thornton Mellon relies) as depriving sheriffs of the ability to develop policies as to the service of writs. The Sheriffs contend that the duty to serve writs is discretionary rather than ministerial.

The Sheriffs assert that Thornton Mellon’s reliance on the distinction between discretionary duties and ministerial ones is misplaced because the distinction applies to tort cases in which the doctrine of public official immunity shields certain government officials from liability for acts that are discretionary, and that the distinction has no relevance in determining whether a government official possesses the implied authority to take a reasonable action. Finally, the Sheriffs maintain that there is no genuine dispute of material fact concerning the mover policy or the weather policy, that Thornton Mellon has not disputed that the policies are materially the same across the jurisdictions at issue, and that Thornton Mellon has essentially