Can the Office of Sheriff Survive?

Can the Office of Sheriff Survive? or Do Passing Economic Crises Justify Abolition of the Sheriff’s Duty to Perform the Law Enforcement Function?

Carson J. Tucker FARMINGTON HILLS 31700 Middlebelt Road Suite 150Farmington Hills, MI 48334 (248) 851-4111 (phone) (248) 851-0100 (fax) (734) 218-3605 (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 (cont’d) • 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 author’s 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. 1135 (Revised 1984); King James Bible (Old Testament).

History (cont’d) • “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 (cont’d) • 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 Sheriff’s 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, 102-03; 4 NW 492 (1880). • Allor is the case most cited in other states for this rule. Thus, the Michigan rule is the majority rule.

MichiganConstitutional Recognition • In Michigan, the Sheriff’s 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).

MichiganConstitutional 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)

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, 102-03; 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, 102-03; 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, 247-48; 242 NW2d 538 (1976); • National Union of Police Officers v Wayne County Bd of Comm’rs, 93 Mich App 76, 82-3; 286 NW2d 242 (1979).

Notable Case Law (cont’d) The United States Supreme Court: In matters within the scope of the Sheriff’s 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, 792-94; 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 King’s 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 600.587; MCL 45.407.

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 (cont’d) • At common law, the Sheriff had “the responsibility of the general police in which he protected not only the king’s peace, but the many local systems of peace and order.” Radin, Anglo American Jurisprudence, pp. 170-71, § 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 (cont’d) • 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 King’s 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 45.407 provides, in part, that it is the sheriff’s duty “to serve and execute all civil writs and processes that may be reasonably served and executed.” See also, Oxford Companion, supra, pp. 742-43 (sheriff is the primary official involved in serving judicial processes in the form of writs).

Ministerial Duties (cont’d) • 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, 287-86 (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 Sheriff’s 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 45.407 and MCL 45.408 (duty to perform all services within jurisdiction of the sheriff’s office for which county may be liable, serve and execute all writs and processes, and imposing misdemeanor penalty for failure to do same); • MCL 51.68 and MCL 51.69 (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 51.70 and MCL 51.71 (authority and duty to appoint as many deputies as necessary to fulfill duties and powers) See also National Union, supra. • MCL 51.75 (maintenance of county jail and custody of prisoners therein); • MCL 51.76 (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 51.83 (duty to maintain office hours and location of department); • MCL 51.84 (duty to accept service of process); • MCL 51.221 (duty to serve and execute civil or criminal processes issued by courts); • MCL 51.281 through MCL 51.283 (duty to create, maintain and enforce disciplinary measures for prisoners, report the circuit court, and suffer liability for failure);

Statutory Duties • MCL 168.520 (investigate alleged or suspected illegal or fraudulent voter registration activity); • MCL 168.941 (institute criminal proceedings for violation of election laws); • MCL 51.301 (duty to recover drowned bodies in areas outside corporate limits of cities);

Statutory Duties • MCL 600.581 (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 600.582 (duty to serve as officers of the court); • MCL 600.584 (power and duty to request aid in preserving the peace, serving process; apprehension of persons for felony or breach of peace);

Statutory Duties • MCL 600.587 (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 600.588 (attend to jury and imposition of liability for neglect to do same); • MCL 600.2916 (duty to monitor fumigated buildings); • MCL 750.191 (duty to execute process and penalties imposed for refusal to do same);

Statutory Duties • MCL 750.188 and MCL 750.189 (duty to prevent escape from county jail and imposition of criminal sanctions for failure to uphold the duty); • MCL 750.52 (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 752.11 and MCL 752.12 (duty as elected official to uphold and enforce the law and imposing penalty for failure to do same); • MCL 780.68 (duty to take bail and give receipt upon establishment of bail by courts);

Statutory Duties • MCL 801.1 (operation of jail and requirements to use for detention of pre-trial defendants and as a prison); • MCL 801.4 (recordkeeping requirements and medical expenses); • MCL 801.5 and MCL 801.5a (medical care of prisoners), see also Mich. OAG Opinion No. 4957 (sheriff must provide medical care to prisoners); • MCL 801.7 (control of conversations between prisoners and counsel);

Statutory Duties • MCL 801.8 (duty of sheriff to insure adequate meals being provided to prisoners); • MCL 801.12 (recordkeeping requirements for prisoner labor); • MCL 801.25 and MCL 801.27 (duty to maintain discipline and impose punishment in jail); • MCL 801.91 (cooperate with court to furnish information and assistance to aid prisoner reimbursement to county);

Statutory Duties • MCL 801.6, MCL 801.103, and MCL 801.104 (duty to maintain prisoner populations and to keep prisoners separate); • MCL 801.101 and MCL 801.102 (duty to take and keep federal prisoners and liability for safe-keeping of same); • MCL 801.103, MCL 801.104, and MCL 801.105, MCL 801.108, MCL 801.109 (duty to maintain proper separation of prisoners and misdemeanor liability imposed for failure to do same);

Statutory Duties • MCL 801.119 and MCL 801.120 (duties to transport prisoners); • MCL 801.252 through MCL 801.258 (duty to collect wages, alimony and support payments as directed by the courts and duty to report to courts regarding same); • MCL 801.261 through MCL 801.265 (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 801.1029, 801.1059 801.108, 801.109, 750.191, 600.851, 600.852, 600.587, 600.588.

The Sheriff is a State Executive Constitutional Officer • Very important: Although head of the County’s 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 county’s citizens.

Can the Office of Sheriff Survive? What is the Fundamental Issue?

“It’s 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?

County’s 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.

County’s Funding Obligation (cont’d) • The funding authority “is obligated to budget sums sufficient to allow [constitutional] officers to carry out their mandated duties and obligations.” 46th 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 (Cont’d) • “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 Comm’rs, 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 (cont’d) • Should there be a higher standard for performance of the law enforcement function? • Do we want to live in a county where the Sheriff’s 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. • County’s obligation to fund the Sheriff’s ministerial duty to keep prisoners and maintain the jail is “suitable and sufficient”? • Is this higher than “serviceable”?

Outstanding Issues (cont’d) • Does specific statutory funding obligation create higher standard than “serviceability”? • MCL 45.16 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 (cont’d) • Does the County want to suffer the political backlash from underfunding the Sheriff’s 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 (cont’d) • Revenue Generating – Does the Sheriff have a legal obligation to generate revenue to offset the County’s 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 (cont’d) • 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

Can the Office of Sheriff Survive?