Presentation on theme: "Can the Office of Sheriff Survive? or Do Passing Economic Crises Justify Abolition of the Sheriffs Duty to Perform the Law Enforcement Function?"— Presentation transcript:
Can the Office of Sheriff Survive? or Do Passing Economic Crises Justify Abolition of the Sheriffs Duty to Perform the Law Enforcement Function?
Carson J. Tucker FARMINGTON HILLS Middlebelt Road Suite 150 Farmington Hills, MI (248) (phone) (248) (fax) (734) (mobile)
History of the Office of Sheriff The Office of Sheriff has existed at least as long as civilizations were ruled by a sovereign. The office of Sheriff is one of the most familiar and most useful to be found in the history of English institutions. With the single exception of kingship, no secular dignity now known to English-speaking people is older. W. A. Morris, The Medieval English Sheriff to 1300, p. 1 (Manchester University Press, 1927).
History (contd) Lord Coke, a famous English legal scholar, traced the office back to the Romans. Under Roman law, sheriffs, shires, and counties existed and the office was referred as the office of the consul, which the Romans called consulatum. W.H. Watson, A Practical Treatise on the Office of Sheriff, ch. 1, § 1, p. 1 (2d ed 1994). Translations of the Book of Daniel, Chapters 3:2; 3:3, recount the authors recorded dreams upon his exile to the Province of Babylon in 598/597 B.C., and those translated writings include reference to sheriffs of the outlying provinces, who accompanied Nebuchadnezzar to a dedication ceremony in Babylon. New World Translation of the Holy Scriptures, p (Revised 1984); King James Bible (Old Testament).
History (contd) The functions, status and powers of the office... have undergone change, but for over nine centuries it has maintained a continuous existence and preserved its distinguishing features. Morris, supra.
American Constitutional Recognition The recognition of the Office of Sheriff in State Constitutions had a uniquely American effect upon the common-law powers and duties of the Sheriff. When the office of sheriff is a constitutional office in any state, recognized and designated eo nomine as a part of the machinery of the state government, the sheriff ex vi termini must possess in that state all the substantial powers appertaining to the office by common law. It is competent for the state legislature to impose upon him new duties growing out of public policy or convenience, but it cannot strip him of his time-honored and common- law functions, and devolve them upon the incumbents of other offices created by legislative authority. Murfree, A Treatise on the Law of Sheriffs and Other Ministerial Offices, § 41 (1884).
American Constitutional Recognition (contd) Under the Parliamentarian system of common-law England, the Office of Sheriff was reposed with no such stature, as English statutes could restrict and even do away with the Office, because it enjoyed no constitutional sanction, which essentially acted to suspend and preserve the Sheriffs common-law powers and duties. Thus, as the office attained the constitutional imperative in the United States, the majority of states have held that the powers and duties of the office may not be abridged. Beasley v Ridout, 94 Md 641,52 A 61, 63 (1902), citing Murfree, supra, See also Murphy v Yates 276 Md 475, 491; 348 A2d 837, 846 (Md 1975), citing Allor v Bd of Auditors of Wayne County, 43 Mich 76, 101, ; 4 NW 492 (1880). Allor is the case most cited in other states for this rule. Thus, the Michigan rule is the majority rule.
Michigan Constitutional Recognition In Michigan, the Sheriffs existence has continued from its days as a British Territory up to and through statehood and it has survived 4 constitutional conventions. Michigan Sheriffs in Four Centuries, 1788 to 2004 (MSA Educational Services 2d ed 2004).
Michigan Constitutional Recognition Every Michigan constitution has included the office of sheriff as a constitutional office. Mich Const Art VII, § 4 (1835) Mich Const Art X, § 3 (1850) Mich Const Art VIII, § 3 (1908) Mich Const Art VII, § 4 (1963)
There shall be elected for four-year terms in each organized county a sheriff... whose duties and powers shall be provided by law.
Michigan Constitutional Recognition The office was praised, its importance honored, and its duties and powers solidified and forever engrained in Michigan constitutional jurisprudence by the four most prominent Justices of the Michigan Supreme Court in state history. Justice Campbell: no officer vested with powers and duties by Constitution may be deprived thereof and the constitutional offices of justices of the peace, constables and sheriffs are so connected with the course of criminal justice as to be beyond legislative annihilation. Allor v Bd of Auditors of Wayne Cty, 43 Mich 76, 101, ; 4 NW 492 (1880).
Michigan Constitutional Recognition Justices Cooley and Christiancy: Preservation of the peace has always been regarded, both in England and in America, as one of the most important prerogatives of the state; it is not the peace of the city or county, but the peace of the king or state that is violated by crimes and disorders; municipal officers have no power as conservators or justices of the peace; this power is reposed singularly in the office of Sheriff and if it is assumed by any other local officers it will be an usurpation People ex rel Leroy v Hurlbut, 24 Mich 44, 82-3, ; 1871 WL 3042 (1871).
Michigan Constitutional Recognition Justice Graves: recognizing the common- law duties of the sheriff as including the execution of the orders, judgments and process of the courts, the preservation of the peace, the arrest and detention of persons charged with the commission of a public offence, the service of papers in actions, and the like. White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880).
Notable Case Law Addressing Role and Stature of Sheriff The Sheriff has the primary duty to bring criminals to justice by investigating and ferreting out criminal activity, responding to the calls of the citizenry, keeping the peace and maintaining law and order, executing lawful orders of the courts and the governor, and performing those other inherent common-law, constitutional, and statutory duties imposed upon him by the state Legislature. White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880); Scougale v Sweet, 124 Mich 311, 322; 82 NW 1061 (1900); Brownstown Twp v Wayne County, 68 Mich App 244, ; 242 NW2d 538 (1976); National Union of Police Officers v Wayne County Bd of Commrs, 93 Mich App 76, 82-3; 286 NW2d 242 (1979).
Notable Case Law (contd) The United States Supreme Court: In matters within the scope of the Sheriffs duties and powers, the Sheriff is the chief law enforcement officer in the county, and he has no superiors in the performance of these aforementioned common-law, constitutional and statutory duties. The Sheriff represents the sovereignty of the State and he has no superiors in his county and in the execution of his law enforcement duties the Sheriff represents the state and a county commission has no direct control over how the sheriff fulfills his law enforcement duty. McMillian v Monroe County, 520 US 781, 791, ; 117 S Ct 1734 (1997).
Common-Law Duties and Powers The common-law powers and duties of the sheriff are usually arranged under four distinct classes. South v Maryland, 59 U.S. 396, 401 (1855) Judicial Bailiff Conservator of the Peace Ministerial Duties
Judicial Only common-law function that is now obsolete – Sheriff no longer sits on county courts 1297 a.d. the Magna Carta (the Great Charter) forbade the Sheriff from acting in judicial capacity justice of the peace in trials of criminal cases.
Bailiff As the Kings Bailiff, the Sheriff seized all escheats, forfeitures, waifs, wrecks, and estrays. South v Maryland, supra. Translated into modern duties – seizure of personal and real property upon order of the courts, execution of forfeitures, foreclosures, writs of attachment, etc. Michigan statutory duties define and mandate some of these duties. MCL ; MCL
Conservator of the Peace Most significant and most substantial common- law duty still exercised: The Sheriff is a representative of the sovereign or the state for this purpose; Must commit to prison all persons who break the peace or attempt to break it; Bound, ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to jail for safe custody;
Conservator of the Peace (contd) At common law, the Sheriff had the responsibility of the general police in which he protected not only the kings peace, but the many local systems of peace and order. Radin, Anglo American Jurisprudence, pp , § 109; 1 W. Blackstone, Commentaries on the Law of England, p. 343 (4th ed., Clarendon Press, Oxford, England, 1770). The Hue and the Cry –the Sheriff may command all citizens of the county to attend him in pursuit of felons and rioters, and this is known as the power of the county or posse comitatus, which the Sheriff possessed at common law. Watson, supra at p. 2. By Statute of Winchester, 13 Edw I cc. 1 and 4 (1285), it was provided that anyone be it a constable or private citizen who witnessed a crime shall make hue and cry and pursue the criminal until he was apprehended and delivered over to the sheriff. See also Blackstone, supra at 343.
Conservator of the Peace (contd) Translated into modern, Michigan jurisprudence: Sheriff has the primary duty to bring criminals to justice by investigating and ferreting out criminal activity, respond to the calls of the citizenry, patrol those areas of the county not adequately policed; keep the peace and maintain law and order, execute the lawful orders of the courts and the governor, and perform those other inherent common-law, constitutional, and statutory duties imposed upon him by the state Legislature.
Ministerial Duties Attend to needs of the courts (provide court officers); Serve writs and issue legal process; The writ, which still exists in Michigan today in various forms and retains much of the same functions as its medieval predecessor was a special order issuing from the Kings Chancery ordering something to be done or generally requiring someone to appear and justify his conduct. Radin, supra, p. 141, § 109. Where the order was directed to the sheriff for execution, the person affected [was to be] directly brought before the king. Id. MCL provides, in part, that it is the sheriffs duty to serve and execute all civil writs and processes that may be reasonably served and executed. See also, Oxford Companion, supra, pp (sheriff is the primary official involved in serving judicial processes in the form of writs).
Ministerial Duties (contd) Gaoler – Old French for Jailer Among the duties of the Sheriff that are most characteristic and well-acknowledged at common law and now codified by Michigan statute is the custody and control of the county jail. MCL 51.75; Plummer v Twp of Edwards, 87 Mich 621, 624 (1891). The Sheriff is by law the custodian of the jail and of the prisoners confined therein and is responsible for the safekeeping of prisoners. See also Kocken v Wisc Council 40, 301 Wis 2d 266, (2007) (operation of the jail is a primary duty of the sheriff that gave character and distinction to the office thereof at common law and is within the Sheriffs constitutional prerogative).
Statutory Duties In addition to the traditional, common-law duties that must be performed by the Sheriff, the Legislature may also impose additional duties upon the Office. Some of these include the following: MCL and MCL (duty to perform all services within jurisdiction of the sheriffs office for which county may be liable, serve and execute all writs and processes, and imposing misdemeanor penalty for failure to do same); MCL and MCL (liability for loss of bond in amount of at least $10,000 and duty to provide same in absence of county coverage);
Statutory Duties MCL and MCL (authority and duty to appoint as many deputies as necessary to fulfill duties and powers) See also National Union, supra. MCL (maintenance of county jail and custody of prisoners therein); MCL (duty to serve as primary law enforcement officers on county primary roads and county local roads for purposes of patrolling and monitoring traffic, enforcing the criminal laws of the state, investigation of accidents involving motor vehicles, provide emergency assistance);
Statutory Duties MCL (duty to maintain office hours and location of department); MCL (duty to accept service of process); MCL (duty to serve and execute civil or criminal processes issued by courts); MCL through MCL (duty to create, maintain and enforce disciplinary measures for prisoners, report the circuit court, and suffer liability for failure);
Statutory Duties MCL (investigate alleged or suspected illegal or fraudulent voter registration activity); MCL (institute criminal proceedings for violation of election laws); MCL (duty to recover drowned bodies in areas outside corporate limits of cities);
Statutory Duties MCL (attend probate, district, and circuit court sessions when required by respective judges, liability and fines for failure to so attend and execute all lawful orders and processes of the courts of the state and liability for punishment and disobedience to said orders); MCL (duty to serve as officers of the court); MCL (power and duty to request aid in preserving the peace, serving process; apprehension of persons for felony or breach of peace);
Statutory Duties MCL (execute writs of attachments, summonses, summon juries, warrants, and any other process authorized by a judge and liability and/or fine for willful neglect to execute); MCL (attend to jury and imposition of liability for neglect to do same); MCL (duty to monitor fumigated buildings); MCL (duty to execute process and penalties imposed for refusal to do same);
Statutory Duties MCL and MCL (duty to prevent escape from county jail and imposition of criminal sanctions for failure to uphold the duty); MCL (duty to arrest and prosecute persons who have violated law prohibiting cruelty to animals and imposing misdemeanor liability on failure or neglect of such duty); MCL and MCL (duty as elected official to uphold and enforce the law and imposing penalty for failure to do same); MCL (duty to take bail and give receipt upon establishment of bail by courts);
Statutory Duties MCL (operation of jail and requirements to use for detention of pre-trial defendants and as a prison); MCL (recordkeeping requirements and medical expenses); MCL and MCL 801.5a (medical care of prisoners), see also Mich. OAG Opinion No (sheriff must provide medical care to prisoners); MCL (control of conversations between prisoners and counsel);
Statutory Duties MCL (duty of sheriff to insure adequate meals being provided to prisoners); MCL (recordkeeping requirements for prisoner labor); MCL and MCL (duty to maintain discipline and impose punishment in jail); MCL (cooperate with court to furnish information and assistance to aid prisoner reimbursement to county);
Statutory Duties MCL 801.6, MCL , and MCL (duty to maintain prisoner populations and to keep prisoners separate); MCL and MCL (duty to take and keep federal prisoners and liability for safe-keeping of same); MCL , MCL , and MCL , MCL , MCL (duty to maintain proper separation of prisoners and misdemeanor liability imposed for failure to do same);
Statutory Duties MCL and MCL (duties to transport prisoners); MCL through MCL (duty to collect wages, alimony and support payments as directed by the courts and duty to report to courts regarding same); MCL through MCL (duties and obligations with respect to weapons, controlled substances, and alcohol in jail and imposition of felony for violation of such duties).
Statutory Duties Many of these provisions provide mandatory obligations upon the Sheriff. Indeed, several provide for civil and criminal penalties for the failure to comply. See e.g., MCL , , , , , , ,
The Sheriff is a State Executive Constitutional Officer Very important: Although head of the Countys law enforcement, the Sheriff is reposed with the public trust to keep the peace of the State for his electorate. Allor, supra; White, supra; Scougale, supra; Hurlbut, supra; Brownstown, supra. As such, the Sheriff must be free from the influence of local political concerns and the whims of passing crises. McMillian, supra at 795 (the common law envisioned the problem of local political influence over the Office of Sheriff and thus, clearly delineated the duties of the Sheriff as being for the State on behalf of the countys citizens.
Can the Office of Sheriff Survive? What is the Fundamental Issue?
Its the Economy … Stupid! - James Carville Does the Sheriff have a right to funding in the performance of his mandatory duties and his constitutional, common-law, and statutory powers? Of course. In these times of economic strain, where are the courts going to draw the line?
Countys Funding Obligations Local boards of commissioners have legislative powers in some matters, in carrying out the duties imposed upon them by the legislature their function is executive or administrative, and they have no legislative function in the premises. Wayne County Jail Inmates v Wayne County Sheriff (Lucas), 391 Mich 359, 364 (1974). Thus, where a duty is imposed upon a constitutional officer (by common law or statute) the county board of commissioners must budget sums sufficient to allow the... officers to carry out their duties and obligations. Cahalan, supra. Otherwise, the county could relieve itself of the responsibility by appropriating insufficient funds. Id.
Countys Funding Obligation (contd) The funding authority is obligated to budget sums sufficient to allow [constitutional] officers to carry out their mandated duties and obligations. 46 th Circuit Court v Crawford County et al, 476 Mich 131, 147 (2006). Thus, where a court finds such a duty, it can and should order the county to fund it. Jail Inmates, supra; Cahalan, supra.
Judicial Gloss Michigan jurisprudence developed a standard for the funding of mandated functions. Serviceability – The standard to be applied in determining whether a county has unlawfully underfunded the constitutional officers to a point that they are unable to fulfill their mandated functions. Cahalan (Prosecutor) v Wayne County, 93 Mich App 114, 124 (1979).
Judicial Gloss (Contd) Serviceability must be defined in the context of urgent, critical, extreme and vital needs. Cahalan, supra; Wayne County Cir Ct Judges v Wayne Cty Bd of Commrs, 383 Mich 10 (1969). A serviceable level of funding is the minimum budgetary appropriation at which statutorily mandated functions can be fulfilled. A serviceable level is not met when the failure to fund eliminates the function or creates an emergency immediately threatening the existence of the function. A serviceable level is not the optimal level. A function funded at a serviceable level will be carried out in a barely adequate manner, but it will be carried out. A function funded below a serviceable level, however, will not be fulfilled as required by statute. Cahalan, supra.
Burden on the County Before a county can be heard to interpose financial inability to fund a mandated function, it must demonstrate that it has cut spending on discretionary, non- mandated functions, and only then can the inquiry be made as to whether it can fund, and if so, whether it has adequately done so. Cahalan, supra.
Burden then Shifts to the Sheriff In litigation to compel funding, the plaintiff  must prove by clear and convincing evidence that the requested funding is both reasonable and necessary Crawford County, supra at 149. The plaintiff seeking to compel funding must demonstrate that the overall operation of the Office or a constitutional function is in jeopardy because of the actions taken by the funding unit. Crawford County, supra.
Outstanding Issues What are mandated functions? Constitutional duties. Crawford County, supra. Common-law duties. Unanswered, but likely because they are mandated. Statutory duties. Cahalan, supra. serviceable or something more? Does it depend on the function involved? Does it depend on office involved? According to Cahalan, Crawford County.... serviceable means barely adequate. These cases dealt with services that were reasonable and necessary after the law enforcement function had been performed, i.e., prosecution, judicial.
Outstanding Issues (contd) Should there be a higher standard for performance of the law enforcement function? Do we want to live in a county where the Sheriffs patrol presence or response abilities are barely adequate? Other public policy – welfare of the citizenry; public safety – are these compelling reasons to push for a higher level of funding than just a barely adequate one? The trial court in the jail case seemed to think so with respect to constitutional issues. Countys obligation to fund the Sheriffs ministerial duty to keep prisoners and maintain the jail is suitable and sufficient? Is this higher than serviceable?
Outstanding Issues (contd) Does specific statutory funding obligation create higher standard than serviceability? MCL states that [e]ach... county shall, at its own cost and expense, provide... a suitable and sufficient jail.... This funding requirement may provide an exception to the serviceability standard because (1) it is an affirmative legislative mandate; and (2) by its very language it establishes a different standard, e.g., suitable and sufficient; (3) has not been interpreted to equate with serviceability.
Outstanding Issues (contd) Does the County want to suffer the political backlash from underfunding the Sheriffs Office to the point of only barely adequate funding? Is it legal to underfund the law enforcement function, particularly, those constitutional, common-law and statutory duties that the Sheriff must perform?
Outstanding Issues (contd) Revenue Generating – Does the Sheriff have a legal obligation to generate revenue to offset the Countys financial obligations? It may be an obligation, but is it a legal obligation? Probably not. [T]he duties of sheriff... relate to the execution of the orders, judgments and processes of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; the service of papers... and the like. [T]hey have no relation to the collection of revenue. White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880): says that the Sheriff has no duty to generate revenue.
Outstanding Issues (contd) Revenue Generating – It may be good politics; it may make good business sense as the Sheriff must answer to the electorate – the more he can generate to benefit the Office the better he can perform his function. Less friction with county government
Summary of Position The Sheriff has inherent common-law powers and duties, that were constitutionally recognized when the Sheriff was first named in the Michigan Constitution. These inherent, common-law powers and duties may not be destroyed, diminished or infringed upon by the Legislature, or by any inferior legislative or executive department. The Legislature may only add to or expand the Sheriffs duties and powers By virtue of his stature as a state, constitutional officer, reposed with the public trust and under the states police power, the Sheriff has the exclusive power to delegate his common-law, constitutional,and statutory duties, and such power may not be infringed upon by another agency or individual.
Summary of Position (contd) Whatever action is taken with respect to the constitutional Office of Sheriff, such action can never so diminish the ability of the office to serve its constitutional function to an extent that it can no longer be characterized as that office. Allor, supra; Brownstown, supra; National Union, supra. If the office remains in name only, then the constitutional imperative has been destroyed and the sheriffs constitutional mandate can no longer be fulfilled. In addition, such action would essentially disenfranchise the voters of the county, who voted for the office to serve a particular purpose – preserve law and order and perform the law enforcement function, independently and without compromise.
Summary of Position (contd) County has an obligation to fund Sheriffs mandated (common-law and statutory) functions. Burden is first on County to demonstrate that it has not spent money on discretionary items at the expense of those it is obligated by law to fund – the mandated functions of the constitutional offices. Burden then shifts to Sheriff to demonstrate by clear and convincing evidence that the funds requested are reasonable and necessary to maintain the mandated function. Public policy, preservation of public safety and peace, may warrant the funding of the primary common-law and statutory duties to a level that is greater than judicially created serviceability standard. This is one of the most important prerogatives of the state. Hurlbut, supra.
Suggested Approach Define, categorize and staff the Office of Sheriff in a manner that can demonstrate the performance of a mandated common-law and/or statutory duty Be ready to demonstrate how the amount of officers, equipment and civilian support personnel are necessary to perform this function in a manner that comports with the overall demand on the Office, i.e., if patrol and response are 85% of the Offices functions, then be ready to defend this function by demonstrating the duty to carry it out and the necessary money translated into deputized manpower, equipment and civilian support staff / personnel needed to do so; Stay away from serviceability as the standard – if the Sheriff can barely perform the function or can only perform it in a barely adequate manner, then this should not be sufficient to fulfill the constitutional, common-law and/or statutory duty – keeping in mind that the County is ultimately responsible for paying legal fees and indemnifying the Sheriff is short-staffed, overworked, or inadequate support (equipment and/or civilian support personnel) is determined to be the cause of injury.
Suggested Approach (contd) Work with the county to arrive at a solution. Creativity – define functions in a manner that consistent with the Sheriffs common-law and/or statutory duties, i.e., internet crime units (protecting the citizenry in far reaches of the county, investigating and ferreting out crime). These functions are supposed to be unassailable.
Politics, Politics, Politics... If the Sheriff cannot perform his function in a manner that is acceptable to the electorate, then he risks being voted out of office. The degree to which he can fulfill his state- sanctioned, constitutional, common-law and/or statutory duties is directly proportional to the financial support dedicated by the county. This is admittedly a dilemma – the Sheriff has to keep the peace and perform his constitutional duties as an executive member of the State on behalf of the state, but the individual county has to pay for it.
Notable Quotes It would certainly be a very idle provision of the Constitution, to secure to the electors the right to choose their Sheriff, and at the same time leave to the legislature [i.e., a county] the power to detach from the office of sheriff all the duties and functions by law belonging to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. Kennedy v Brunst, 26 Wis 412, 414; 1870 WL 120 (1870).
Notable Quotes (contd) Within the field of his responsibility for the maintenance of law and order the sheriff today retains his ancient character and is accountable only to the sovereign, the voters of his county.... No other county official supervises his work or can require a report or an accounting from him concerning his performance of his duty. He chooses his own ways and means of performing it. He divides his time according to his own judgment of what is necessary and desirable but is always subject to call and is eternally charged with maintaining the peace of the county and the apprehension of those who break it. In the performance of this duty he is detective and patrolman, as well as executive and administrator, and he is emphatically one of those who may serve though they only stand and wait. We recite these qualities and characteristics of the office not because they are novel but because they are so old that they are easily forgotten or unappreciated. Wisc Professional Police Assn v Dane County, 316 NW2d 656, 661 (Wis. 1982), citing Andreski v Industrial Commn, 52 NW2d 135, (Wis. 1952).
Notable Quotes (contd) It cannot be maintained that legislation would be valid which retained the names but destroyed the powers of such officers. While there is an undoubted power to vary the duties of such officers it cannot be lawful to so change those duties as to practically change the office. When officers are named in a constitution they are named as having a known legal character. Allor v Bd of Auditors of Wayne Cty, 43 Mich 76, 101, ; 4 NW 492 (1880)
Notable Quotes (contd) The rights and duties of constables were for many purposes recognized and fixed by our constitutional policy, and so connected with the course of criminal justice as to be beyond legislative annihilation. The argument, although dealing with very ancient affairs, in no sense belongs to mere antiquarian curiosity. It is very unfortunate and very discreditable that so little heed is sometimes paid to the continued and perpetual importance of institutions which form an essential element in the organic life of our government. Courts, at least, are found to respect what the people have seen fit to preserve, by constitutional enactment, until the people are unwise enough to undo their own work. The loss of interest in the preservation of ancient rights is not a very encouraging sign of public spirit or good sense. Allor, supra at 102.
Questions Carson J. Tucker FARMINGTON HILLS Middlebelt Road Suite 150 Farmington Hills, MI (248) (phone) (248) (fax) (734) (mobile)