Sheriff: an arresting issue

There is going to be a new sheriff in town, eventually. An interim sheriff has been named, but the selection of a permanent successor, well, that’s where things get complicated.

Included In the agenda for the Jefferson County Commission meeting this week is discussion regarding the selection of the successor. According to counsel for the Commission in the minutes from last meeting, there is no process for succession outlined in the West Virginia Code; it is up to the County Commission to “design a process.”

To further complicate matters, the appointment would only be temporary – and upon checking with the attorney general, counsel reported that there is a conflict between two articles in the Code. Apparently one article states that the County Commission is to appoint a successor to serve until the next election (in 2014), while another article states that if the vacancy occurs with more than one year remaining in the term an election must be held.

That prompted a question from one commissioner: Does a special election have to be held now, and if so, would the winner serve out the remainder of the term, or would another election have to be held in 2014?

It feels to me folks like we’ve been through this before, and recently. It’s déjà vu all over again. The attorney general has offered to provide an opinion and the County Commission has taken him up on it. Stay tuned.

The office of sheriff is important – more important than some may realize. Under British common law, sheriffs were considered conservators of the peace along with judges, police, and constables. So what are the duties of today’s West Virginia county sheriff? The Sheriff is the chief law enforcement officer for the county; provides security for local courts; does road patrol in the rural areas of the county; oversees the holding center and transports prisoners to the regional jail. Further, the sheriff is the county treasurer, responsible for collecting taxes.

Those are the duties commonly associated with the office, but there is also a constitutional aspect as well, as set forth in a 1997 Supreme Court decision.

In Printz v. United States, the Court decided that the federal government did not have the power to direct county sheriffs or other state officials to enforce federal mandates. The case was a consolidation of actions brought by two county sheriffs, Mack in Arizona and Printz in Montana in response to the Brady Act. Part of their defense was that the county sheriff was the supreme law enforcement officer over their counties and that the federal government could not supersede their legal authority. The Court ruled in their favor. To quote from the majority opinion, “our citizens…have two political capacities, one state and one federal, each protected from incursion by the other.”

One of the litigants, Sheriff Mack, a graduate of the FBI National Academy, has since retired from law enforcement and has become somewhat of a national figure. On his website are examples of sheriffs acting in accordance with the decision. For example, in Wyoming, sheriffs made it a policy that all federal agents would have to check with them before they could make arrests, serve papers, or confiscate property within their respective jurisdictions.

If this sounds controversial to you, I would respectfully draw your attention to Article I, section 2 of the West Virginia Constitution, which says: “The government of the United States is a government of enumerated powers, and all powers not delegated to it, or inhibited to the States, are reserved to the States or to the people thereof. Among the powers so reserved to the States is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government, created by this Constitution, to guard and protect the people of this State from all encroachments upon the rights so reserved.”

As I have maintained previously in this space, the most relevant government is that which is most local. This applies to most public policy matters – whether it be education, agriculture or law enforcement. The sheriff is our chief law enforcement officer and is a locally elected official. It is important that we choose the right person to be our next sheriff, of course, once we figure out how to do that in accordance with state law.

— Elliot Simon writes from Harpers Ferry.

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