April 11, 2000
SHERIFFS DUTIES AFTER REMOVAL FROM THE CONSTITUTION
By: Christopher Reinhart, Research Attorney
You asked about a scenario regarding reforming the sheriffs that could occur: (1) voters approve a constitutional amendment removing sheriffs from the constitution that is effective this November, (2) the act amending the statutes regarding sheriffs is effective sometime after that date, and (3) sheriffs (and their deputies) continue to perform their statutory functions until the statutes are amended.
If a constitutional amendment removes the sheriffs from the constitution, a court could conclude that they can still carry out the duties and perform the functions given to them in the statutes. The constitution does not specify any duties or functions for sheriffs. This is done by statute. The statutes specify their election, provide salaries, require them to serve process and perform other similar court functions, and require them to provide courthouse security and prisoner transportation. The statutes also provide their arrest powers. Thus, a court could conclude that the sheriffs become statutory officers and can continue to perform these functions until the statutes are amended or repealed.
On the other hand, it is possible that a court might find that the sheriffs derive their powers from the constitution and their removal from the constitution eliminates their powers. This might lead a court to invalidate any functions performed by them, their deputies, and special deputies after the amendment's effective date. For example, this could invalidate process served or arrests made by the sheriffs and mean that they are wrongfully imprisoning people at courthouse lock-ups and during prisoner transportation.
SHERIFFS AS STATUTORY OFFICERS
If sheriffs are removed from the constitution by an amendment, they might become statutory officers. The statutes require their election, provide salaries, and give them their powers and duties.
The fact that sheriffs existed in Connecticut prior to the adoption of the constitution in 1818 supports the argument that sheriffs could continue to exercise their powers after removal from the constitution. The Code of 1650 of the General Court of Connecticut allowed marshals to collect fees for service of executions and attachments and fines for breaches of law. In 1702 marshals became sheriffs. Legislation in 1722 defined the sheriff's powers including conserving the peace, suppressing riots, and arresting people for disturbing the peace. It also included authority to serve process but the sheriffs had already been performing this function for some time (Loomis, Civil and Judicial History of Connecticut, 1895).
Connecticut's first constitution of 1818 included a provision for the appointment of sheriffs by the General Assembly for three years (1818 Constitution, Art. 4 § 20). It did not mention any duties and left it to the statutes (which already existed) to define them. The amendments to this provision and the current constitutional provision do not include any duties or functions for the sheriffs.
Since the office of sheriff existed by statute prior to the constitution and the constitution and its amendments do not alter or specify any of their duties, it is likely that the sheriffs could continue to function under the statutes if they are removed from the constitution.
You asked us to come up with some specific hypothetical problems if a court were to conclude that the adoption of the constitutional amendment removing the sheriffs from the constitution removed all of their powers and those of their deputies and special deputies. Listed below are some examples.
Service of Process
If the sheriffs and deputies lose their authority to serve process, anyone who is served with papers in a lawsuit could argue that the service is improper and that the suit should be dismissed from court.
Sheriffs, deputies, and special deputies are peace officers. Peace officers can arrest a person during the commission of an offense within their jurisdiction without a warrant, or on speedy information of others. The precinct or jurisdiction of deputies and special deputies is wherever they are required to perform their duties. If they lose these arrest powers, anyone arrested and detained by them could sue for wrongful arrest or wrongful imprisonment.
If the sheriffs lose their authority to provide courthouse security, they could lose their authority to maintain order in the courts. If they lose arrest powers, this also could limit their ability to maintain order in the courts and prevent them from arresting someone who commits an offense in the courts.
Escape, Use of Force, and Self-Defense
Sheriffs, deputies, and special deputies are authorized to use physical force and deadly force as peace officers when making an arrest or preventing an escape in certain circumstances. If they lose these powers and their arrest powers, it could affect their ability to prevent an escape from a courthouse or a transportation van and lead to suits for wrongful arrest, wrongful imprisonment, and personal injuries.
Bonds and Personal Liability Insurance
Sheriffs and deputies must post a bond to insure the faithful discharge of their duties and protect against damages caused by their wrongdoing or neglect. Since the bond applies to sheriffs or deputies carrying out their duties, it may not provide any protection if the office of sheriff is abolished and sheriffs and deputies lose their authority. Similarly, the protection provided by the personal liability insurance for the negligence, acts, or omissions of sheriffs and deputies might not be available.
Turning Over Money Collected
Sheriffs and deputies who collect money on behalf of another person are obligated to pay it to that person within 90 days or when $1,000 is collected. This statute may no longer apply and thus, the sheriffs would not have a definite time frame to pay the money.