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.


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.


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