Explanation of Intent - SB 272
Constitutional Referendum to Make the Office of
Sheriff a Constitutional Office
by Gary Marbut
Introduction, qualifications
Gary Marbut is president of the Montana Shooting Sports
Association, the primary political advocate for Montana firearm
owners. Marbut is also the author of Gun Laws of Montana, a
trade paperback now in its Fifth Printing and the accepted
authority on its subject matter. Even more important to this
Explanation of Intent, Marbut created the specific language to be
amended into Article XI with this constitutional referendum.
Therefore, Marbut can best explain the intent for this proposed
language.
Further, Marbut first testified before the Montana House Judiciary
Committee in 1971. Since then, Marbut has had considerable
involvement with the Legislature and public policy
formulation. Marbut has crafted over 70 bills that have
passed the Legislature and been enacted, including one other
successful change to the Montana Constitution (the right to hunt,
fish, and trap).
Further, Marbut has recently retired from a career manufacturing
shooting range equipment for, and selling it to, federal, state,
and local law enforcement agencies nationwide. Marbut has
engaged in extensive travel to most states to visit with personnel
of various law enforcement agencies. This includes to the
FBI law enforcement academy in Quantico, Virginia. Because
of an interest in public policy, Marbut has engaged in many
conversations with law enforcement officials across the U.S. about
the philosophy and practice of law enforcement.
Marbut also recently retired from a three-decade career as a
firearms instructor. For about two decades, Marbut was a
member of the International Association of Law Enforcement
Firearms Instructors, attended the Annual Training Conferences of
that organization, and engaged in countless conversations with law
enforcement personnel about law enforcement policy and practice.
It is because of this convergence of interests and experience that
Marbut crafted the measure that has been introduced as SB 272.
Purpose
The purpose of this Explanation is that it will be introduced in
committee testimony concerning SB 272,
and will become a part of the legislative history of that
measure. Any future court or researcher seeking to learn
about the intent for this measure will have access to this
Explanation.
Problems to Address
In many states, especially the older states, the office of sheriff
has been gradually eroded by shifting powers of the sheriff
gradually to an unelected state police that is not directly
accountable to citizens. In some states, the sheriff is
stripped of all powers except serving process - delivering
paperwork. One purpose of SB 272 is to protect the liberty
of individuals by securing the primary power of law enforcement in
one office that is accountable directly to local voters.
There also seems to be a national trend or problem of the blending
of federal and local law enforcement. Some might
characterize this as a gradual takeover of local law enforcement
by federal entities. This is done via a variety of creeping
mechanisms, including but not limited to conditional grants,
interoperability of communication and other equipment, common
training doctrine, joint task forces, cross deputization,
memoranda of understanding, interagency cooperation, and
more. Such "partnership" too often ends up with federal
entities assuming the role of senior partners and usurping the
prerogatives of the sheriff, sometimes to the detriment of Montana
citizens.
Intent for Features and Text of SB 272
SB 272 would amend two related subsections of Article XI, Sections
3 and 7. The language to be added to Section 3 is a new
subsection (3) that reads:
"(3) Each county must have an elected sheriff who is the chief law
enforcement officer in that county. Historical powers of the
sheriff may not be withdrawn, transferred from, or delegated to
any person or entity outside the control of the sheriff. The
powers of the sheriff include budget administration, arrest,
investigation, negotiation, and detention. Any elector qualified
under law may be elected as sheriff. A sheriff may negotiate law
enforcement duties and activities on lands owned or held by any
Indian or Indian tribes. A sheriff is subject to a recall election
for any cause."
1. The first sentence is, " Each county must have an elected
sheriff who is the chief law enforcement officer in that
county." This sentence accomplishes two things. First,
it insures that the office of sheriff cannot be abolished.
This is important because actually having an elected sheriff is
key to the rest of the exercise. The second clarifies in
what office ultimate law enforcement powers are vested.
Sometimes, an appointed chief of police will claim that he is the
chief law enforcement officer within the limits of his town or
city. Sometimes, the county attorney will claim that he is
the chief law enforcement officer in the county. Sometimes
the attorney general will assert that he is the chief law
enforcement officer in every county. Sometimes federal law
enforcement officers will claim that they are the chief of law
enforcement in a county, at least in some respects. This
jurisdictional squabble is resolved with the declaration in the
first sentence, and resolved in favor of an official who is
elected and thereby accountable to local voters.
2. The second sentence is, " Historical powers of the
sheriff may not be withdrawn, transferred from, or delegated to
any person or entity outside the control of the sheriff."
This prevents gradual erosion of the powers of sheriff, possibly
leaving an emasculated office with no real law enforcement power,
has evolved in some other states. It does allow for
cooperation with other law enforcement entities as long as the
sheriff is in charge. It also allows for other law
enforcement operations in the sheriff's county with the knowledge
and approval of the sheriff.
3. The third sentence is, "The powers of the sheriff include
budget administration, arrest, investigation, negotiation, and
detention." In order to secure the powers of sheriff, it is
necessary to state just what powers are protected. This list
is intended to be a minimum, but not necessarily complete.
In early drafts, the word "administration" was not included.
It was added to clarify just what part of the "budget" the sheriff
should have command over. In implementation of this
provision, it is imagined that the sheriff would submit a budget
proposal to the county commissioners. Whatever funds are
approved would then be subject to the sheriff's discretionary
"administration" to spend as needed. If the sheriff's
spending is disagreeable to the county commissioners, the sheriff
risks a reduced appropriation in subsequent funding cycles.
Securing and retention of powers of arrest, investigation, and
detention would seem to be self-explanatory, given the
foregoing. The power of negotiation relates to the fifth
sentence, explained below.
4. The fourth sentence is, " Any elector qualified under law
may be elected as sheriff." There are some who may argue
that the only people eligible to become sheriff should be those
who have successfully graduated from a government-run school
called the Montana Law Enforcement Academy. Such a
restriction flies in the face of both democratic processes and the
guarantee in the U.S. Constitution that every state must have a
republican form of government. First, the job of sheriff is
largely a managerial one. Few Montana sheriffs actually
patrol their county and thus need specific police training for
that. Second, perhaps the most important role for a sheriff
is to be accountable to the voters. That doesn't require
graduation from a specific government school. Third, someone
wishing to stand for election to the office of sheriff cannot
necessarily become admitted to the law enforcement academy.
If any elector could be admitted, there would be considerable
expense involved, thereby eliminating many potential candidates
who might otherwise be perfectly good sheriffs. It would
simply price many people out of running for this office.
5. The fifth sentence is, " A sheriff may negotiate law
enforcement duties and activities on lands owned or held by any
Indian or Indian tribes." This was maybe the most difficult
part of this proposal to conceive and address. Much study
went into settling on this solution and provision.
Montana has seven Indian reservations and maybe nine recognized
Indian tribes. Each has a treaty with the U.S. with
different language, different history, different application,
different culture, and a complex history of case law. One
size clearly cannot fit all in this regard. On the one hand,
it would be highly undesirable to say or imply to Indians, "Here
is another example of the white man come to boss you
around." On the other hand, there are serious law
enforcement problems on some of Montana's reservations, problems
with violence, drugs, and more. It is also undesirable to
say or imply to Indians, "Hey, you are on your own. Deal
with your own problems."
It is presumed that the local sheriff is best able to appreciate
law enforcement challenges on local reservations. Thus, the
sheriff should clearly have the authority to come to
mutually-agreeable terms with tribal authorities about whatever
law enforcement activities may be performed on a reservation by
the sheriff.
6. The sixth sentence is, "A sheriff is subject to a recall
election for any cause." One problem that emerged in
crafting this proposal is that it created a very "strong man"
office. In order to prevent the office from being misused or
abused, some balance or check is needed. The recall process
is that check.
However, there is a fatal problem with the current Montana Recall
Act. This measure was enacted by initiative in the
1970s. The next session of the Legislature effectively
emasculated the Act by amending it to require one of several
"grounds" for a successful recall of an official. Since
then, it has been near impossible to prove the "grounds" required
in the Act for a successful recall effort. The Act is
effectively toothless. Allowing recall of a sheriff
"for any cause", regardless of "grounds", restores recall as an
effective check on this "strong man" office, a desirable check
accessible by local electors if needed.
SB 272 would amend another related subsection of Article XI, in
Section 7.
Currently, Section 7 says:
"Section 7. Intergovernmental cooperation. (1) Unless prohibited
by law or charter a local government unit may
(a) cooperate in the exercise of any function, power, or
responsibility with,
(b) share the services of any officer or facilities with,
(c) transfer or delegate any function, power, responsibility, or
duty of any officer to one or more other local government units,
school districts, the state, or the United States.
(2) The qualified electors of a local government unit may, by
initiative or referendum, require it to do so."
This section, if left unamended, could entirely defeat the
amendment to Section 3. Thus, the words "and except for the
office of sheriff," are added to clarify that, for example, the
county commissioners cannot assign all the powers and duties of
sheriff to some federal agency. So, this change to Section 7
is more of a housekeeping change to effectuate the changes made in
Section 3.
Conclusion
Should this constitutional referendum be approved by the
Legislature and subsequently approved by the people of Montana at
ballot, and should any question arise about just why this effort
was undertaken and what it was intended to accomplish, this
writing should answer any such questions about the reason done and
the result intended.
Gary Marbut, citizen, elector, and president of the
Montana Shooting Sports Association