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DEPUTY ATTORNEY GENERL

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April 11,2076
The Honorable David Moon
220 House Office Building
Annapolis, Maryland 21 401 - 199 1
Dear Delegate Moon:

You have asked for advice concerning House Bill 390 and Sena-te Blll425, which would
make the warrant intercept program ("the program") available statewide. Specihcally, you have
asked whether a county participating in the program can implement it on a naffower basis. You have
also asked whether there are due process or constitutional issues raised by the interception of a tax
refuncl. It is my view that a sheriff in a county has the discretion not to implement the program to
its full permissible extent, but that a county govemment would not have control over how it is
implernentecl. It is also my view that interception of a tax refund does not raise constitutional issues
so long as it is implemented consistent with due process requirements.
The program, which is currently in effect in Anne Arundel County, Baltimore City, and
Washington County, provides thata"warrant offrcial," that is, an official ofthe federal, State or local
government charged with serving a warrant, may certifi' to the Comptroller the existence of an
outstanding warrant for an individual who is a resident of Maryland or who receives income from
Maryland, and request that the Comptroller withhold any refund to which the individual is entitled.
T'ax - General Article, S 13-937. The Comptroller is then required to withhold the refund and to
notify the individual of the certification by the warrant official of the existence of an outstanding
warrant. Tax - General Article, $ 13-93S(c), The refund may not be paid until the warrant official
notifies the Comptroller that the warrant is no longer outstanding. Tax - General Article, $ 1393S(d). The term "waffant" is defined for purposes of the statute as a criminal arrest warrant issued
for or that results from a failure to appear before a court of the Stat, a violation of the Maryland
Vehicle Lawthat is punishable by aterm of confinement; or a violation of probation. 'fax - General
Article, $ 13-935(c).
House Bill 390 provides that any county "may participate in the program under this part if
the sheriff of the county notifies the Comptroller of the county3s intention to participate on or before
December 3l of the first taxable year for which the county intends to participate."r Participation

The two bills are, at this point, somewhat different, but the difference does not affect the
issues addressed in this letter.

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The Honorable David Moon

April 11,2016
Page2
continues until the sheriff notihes the Comptroller of the county's intention not to participate in the
program.

Bill

390 does not specify ho'w "a county" would make the decision to participate, but
the fact that the decision to participate and to discontinue participation are communicated by the
House

sheriff would indicate that the decision would be made by the sheriff rather than by the county
government. Moreover, the authority given is to decide whether to participate in the existing
program or not to do so, not to create a program for the county, so even if the decision is made by
the county, the county would be joining a program rather than creating one on its own terms,
The program, however, does leave significant discretion in the hands of the warrant offcial,
because the statute says that the warrant official may cerljfy the existence of an outstanding warrant
to the Comptroller. The word "may" in a statute usually connotes discretion, Gazunes v. Foster ,400
Md. 541 ,565 (2007), and I see no reason why it would not be read to do so here. Thus, a warrant
ofhcer has the discretion to develop policies as to which warrants will be certihed, and thus to limit
the reach of the program. As a practical matter, the warrant off,rcials would also determine the
procedures by which the program is implemented for warrants served by them. In light ofthe nature
of the warrants covered by the program, warrant officials would generally be either federal officials
or sheriffs, neither of whom are subject to the control of the counties. Kline v. Fuller,56 Md. App.
294,300 (1983). Thus, the counties themselves would not have the ability to control the exercise

of this discretion.
In 2011, I wrote a letter to the Honorable Stephen R. Schuh about House Bill 1214 of that
year,"Maryland Income Tax Refund - Anne Arundel County -'Warrants" which was the hrst attempt
to enact the program. In response to his inquiry concerning whether the bill was constitutional, I
responded:

to a similar program. I know of no reason,

however, that the State could not use this method to increase the likelihood of
compliance with warrants so long as adequate procedural due process is provided.
The State already has a similar law providing for suspension of a person's driver's
license if they have an outstanding warrant. Transpofiation Article, TR $ 26-204(b).
While this provision has apparently not been challenged, suspension of driver's
licenses for failure to pay child support has been upheld against Due Process
challenge. Thompson v. Ellenbecker, g35 F.Supp. 1037 (D.S.D. 1995), see also
Weinstein v. Albright, 261F.3d I27 (2'd Cir. 2001) (loss of passport resulting from
failure to pay child support). It is my view that holding back income tax returns until
a person complies with outstanding court orders is equally constitutional.

I have found no

It would

case relating

I still find no cases on any similar

licenses. See State ex rel.
driver's
of
continue to uphold suspension

appear that the law has not significantly changed,

program, and cases

The Honorable David Moon

April 11,2016
Page 3
Commissioner of Human Services v. Buchmann,830 N.W.2d 895 (Minn.App.2013). I also note
that Maryland has long intercepted tax returns of persons who owe child support, and that statute has
beenupheldagainstdueprocesschallenge. McClellandv.Massinga,786F.2d1205(4thCir. 1986).

Rowe
Attorney General

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