Del. Supreme Court Rules on Sheriff's Powers - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Del. Supreme Court Rules on Sheriff's Powers

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WILMINGTON, Del. (AP) - The Delaware Supreme Court on Monday upheld a ruling that sheriffs in the state do not have police powers.
    
Currently, the duties of sheriffs in Delaware consist primarily of serving court papers and conducting property sales.
    
But after taking office in 2010, Sussex County Sheriff Jeff Christopher, a Republican elected with the help of tea party supporters, ordered his deputies to stop dangerous drivers and to execute arrest warrants. That led to efforts by state and county officials to rein him in.
    
His deputies were told by the county administrator in 2011 not to make traffic stops or take people into custody unless ordered by a court, and to remove emergency lights from sheriff's vehicles.
    
The attorney general's office, meanwhile, issued several nonbinding opinions concluding that sheriffs do not have police powers.
    
After state lawmakers stepped into the fray last year and explicitly barred sheriffs and their deputies from making arrests, Christopher sued the state and county, arguing that he is embodied with police powers by Delaware's constitution of 1897.
    
In a 26-page opinion, the justices affirmed a March ruling by a Superior Court judge who upheld the constitutionality of the bill passed in June 2012.
    
Christopher, however, argued that lawmakers exceeded their authority in passing the legislation, and that they could not limit the power of sheriffs in such a drastic fashion without passing a constitutional amendment. The sheriff argued that because the Delaware constitution names sheriffs, among other officials, as "conservators of the peace," they have constitutional - not common-law - powers, which include arresting people in criminal cases.
    
The Supreme Court ruled that while the General Assembly cannot abrogate a constitutional office or take away the core duties of a constitutional officer without amending the constitution, the sheriff's common law arrest power is not a fundamental or a core duty of his constitutional role as a "conservator of the peace."
    
"Because the common law arrest power of a sheriff was not fundamental, but was merely incidental, to his role as a 'conservator of the peace' when the 1776, 1792, 1831, and 1897 Delaware Constitutions were adopted, the arrest power can be modified or even eliminated by statute," Justice Randy Holland wrote for the court.
    
Holland is the author of a reference guide to the Delaware constitution and a separate 100-year retrospective of the state's constitution of 1897, He said the term "conservator of the peace" has been used only to describe certain public officials and has never defined the powers of any specifically named constitutional office holder.
    
"The sheriff's argument to the contrary is without merit," he wrote.
    
In a history-laden opinion, Holland reaffirmed an 1863 court ruling that the legislature's power to enact laws regulating the duties of a constitutional office does not extend to taking away "the substance of the office itself..." But he said case law suggests that the "substance" of the office of sheriff was to assist the courts, not act as a law enforcement officer.
    
"Our examination of Delaware history reflects that throughout the eighteenth, nineteenth and most of the twentieth century, the sheriff retained his common law power to arrest for offenses committed in his presence. However, general law enforcement responsibilities were never the substance of the office of sheriff in Delaware," Holland wrote.
    
Spokesmen for Sussex County and the attorney general's office had no immediate comment on the ruling. An attorney for Christopher did not immediately respond to messages seeking comment.

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