Transcript 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 150
Farmington Hills, MI 48334
(248) 851-4111 (phone)
(248) 851-0100 (fax)
(734) 218-3605 (mobile)
“The office of Sheriff is the most
important of all the Executive offices of
the county”
Thomas Jefferson
“The Value of Constitutions”
History of the Office of Sheriff
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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 continued
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The first colonists arrived in Virginia in 1607. By 1619
they became self governing under the auspices of English
parent form of rule. In 1634 Virginia was divided into
eight shires, or counties, which was governed in an
adaptation of England. Along with the Shire form of
government came the administrative position of Sheriff.
In 1634, William Stone was appointed the first sworn
Sheriff in America for the county of Accomac, Virginia.
Sheriff Stone served two consecutive one year terms.
Some researchers argue that the first Sheriff was Lord
William Baldridge from St. Mary’s County Maryland in
1634.
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
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
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 commonlaw 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.
Michigan
Constitutional 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).
Michigan
Constitutional Recognition

Every Michigan constitution has
included the office of sheriff as a
constitutional office.

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Mich
Mich
Mich
Mich
Const
Const
Const
Const
Art
Art
Art
Art
VII, § 4 (1835)
X, § 3 (1850)
VIII, § 3 (1908)
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 commonlaw 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.


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
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, 24748; 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
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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
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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 commonlaw duty still exercised:
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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)
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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
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Attend to needs of the courts (provide court officers);
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Serve writs and issue legal process;
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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)
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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
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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
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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
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MCL 51.83 (duty to maintain office hours and
location of department);
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MCL 51.84 (duty to accept service of process);
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MCL 51.221 (duty to serve and execute civil or
criminal processes issued by courts);
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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
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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
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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
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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);
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MCL 600.588 (attend to jury and imposition of
liability for neglect to do same);
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MCL 600.2916
buildings);
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MCL 750.191 (duty to execute process and penalties
imposed for refusal to do same);
(duty
to
monitor
fumigated
Statutory Duties
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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
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MCL 801.1 (operation of jail and requirements to
use for detention of pre-trial defendants and as a
prison);
MCL 801.4 (recordkeeping
medical expenses);
requirements
and
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
prisoners and counsel);
conversations
between
Statutory Duties
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MCL 801.8 (duty of sheriff to insure adequate meals
being provided to prisoners);
MCL 801.12 (recordkeeping
prisoner labor);
requirements
for
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
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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
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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
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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
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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.
Attorney General opinions
Frank Kelley opinion #6066
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County Boards cannot
create a police force within
a county which would
perform the functions of
the Sheriff.
The office of County Sheriff
is Constitutionally created
as Chief Law Enforcement
Officer of a county
Frank Kelley #6942

This opinion uses “Deputy
Sheriffs” who act under the
Sheriff’s legally mandated law
enforcement authority as the
“model for enforcing the law”
in our state.
Can the Office of Sheriff
Survive?
What is the Fundamental Issue?
“It’s the Economy … Stupid!”
- James Carville
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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
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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
responsibility by appropriating insufficient funds. Id.
the
County’s Funding Obligation
(cont’d)
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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
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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)
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“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, nonmandated 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
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“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
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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?
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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?
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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)
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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)
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
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)
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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)
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
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
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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 Sheriff’s
duties and powers
By virtue of his stature as a state, constitutional officer,
reposed with the public trust and under the state’s 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 (cont’d)
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
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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 sheriff’s
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 (cont’d)
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
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
County has an obligation to fund
(common-law and statutory) functions.
Sheriff’s
mandated
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 Office’s
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 (cont’d)


Work with the county to arrive at a
solution.
Creativity – define functions in a manner
that
consistent
with
the
Sheriff’s
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 statesanctioned, 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
Sheriff Printz V. US

Executive action that has utterly no policy
making component is rare, particularly at
an executive level as high as a jurisdiction’s
Chief Law enforcement Officer…The
distinction between judicial writs and other
government action directed against
individuals in their personal capacity, on
the one hand , and in their official capacity,
on their other hand , is an ancient one,
principally because it is directed by
common sense…
Notable quotes
Printz V US


Much of the Constitution is concerned with setting forth
the form of our government, and the courts have
traditionally invalidated measures deviating from that
form. The result may appear “formalistic” in a given case
to partisans of the measure at issue, because such
measures are typically the product of the era’s perceived
necessity. But the Constitution protects us from our
own best intentions: It divides power among
sovereigns and among branches of government
precisely so that we may resist the temptation to
concentrate power in one location as an expedient
solution to the crisis of the day.
Printz V. US (95-1478), 521 US 898 (1997)
Notable Quotes (cont’d)

“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 Ass’n v Dane County,
316 NW2d 656, 661 (Wis. 1982), citing Andreski v Industrial
Comm’n, 52 NW2d 135, 137-38 (Wis. 1952).
Notable Quotes (cont’d)

“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, 102-03; 4
NW 492 (1880)
Notable Quotes (cont’d)

“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.
US District Ct
Case # 2:96-cv-099-j 2006


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10th Amendment Victory
“The duly elected Sheriff is the highest
ranking Law Enforcement Official within a
county…powers EXCEEDING any STATE
OR FEDERAL Official.
“If the Sheriff does not want Federal
Officers in his county he has the
Constitutional right and power to keep
them out, ask them to leave or retain them
into custody.”
Questions
Carson J. Tucker
FARMINGTON HILLS
31700 Middlebelt Road
Suite 150
Farmington Hills, MI 48334
(248) 851-4111 (phone)
(248) 851-0100 (fax)
(734) 218-3605 (mobile)