The contentious battle over what powers the sheriff in Sussex County holds advanced on two separate fronts Wednesday. At Legislative Hall, the second bill filed this year seeking to clarify sheriffs’ powers in the state of Delaware was released from a House committee. The issue also landed in the Delaware court system when the Sussex County Sheriff Jeff Christopher filed suit against the county, its administrator and members of county council in Superior Court in Sussex County seeking a declaratory judgment affirming his powers, including arrest powers.
House Bill 325 is headed to the House floor after it was voted out of the House Administration committee Wednesday afternoon. The bill, sponsored by House Majority leader and House Administration committee chair Rep. Peter Schwartzkopf (D-Rehoboth Beach), seeks to make clear that county sheriffs and their deputies do not have arrest authority.
“It makes it very clear that [sheriffs in Delaware] do not have the power they think they do in Sussex County,” said Schwartzkopf. “[The sheriffs in New Castle and Kent counties] understand what the traditional role of the sheriff is. I don’t know why there’s such an issue in Sussex County with it, but there is … and that’s why House Bill 325 was produced.”
Nearly a dozen people spoke during the public comment portion of Wednesday’s hearing. The majority were Sussex County residents. Some raised concerns that lack of arrest power would compromise the ability of the sheriff and deputies to execute their duties. Others argued the bill strips the sheriff of his constitutional powers as a “conservator of the peace.”
Schwartzkopf says constitutional concerns are unfounded.
“What were doing with this bill does not change the [Delaware] Constitution. We are not amending the Constitution. We are clarifying the intent of the General Assembly,” said Schwartzkopf.
Georgetown police chief William Topping, representing the Delaware Police Chiefs’ Council, spoke in favor of HB 325 during public comment. He said Sheriff Christopher “is not a cop” and called his exercise of arrest and other police powers “a safety issue.”
“All of us are quite concerned [in Sussex County] about the qualifications of the sheriff and some his deputies to perform the duties they’re doing. They are not trained. They can’t be trained according to Delaware Code,” said Topping. “We have concerns about our own liability within our jurisdictions if they show up at scenes with other officers present.”
Schwartzkopf echoed those concerns.
“If something drastic happens with the sheriff in Sussex County hurting a citizen, you’re going to see one heckava lawsuit,” warned Schwartzkopf. “You’ll see an even bigger lawsuit if somebody in the public hurts one of our deputy sheriffs because he has a sheriff telling him he has the right to do things he doesn’t have a right to do. The family of that deputy sheriff will sue and get a larger award because his boss is telling him to do it when he doesn’t have the authority.”
Schawartzkopf introduced HB 325 after a previous bill seeking the same clarification of powers, House Bill 290, was struck by its sponsor, Rep. Daniel B. Short (R-Seaford), hours before it was slated to come before the House Administration committee on April 25. Short said he pulled the bill because he did not ask for it to be placed on the committee’s agenda. Earlier in April, he asked the bill be tabled while a request was made to the Delaware Supreme Court to determine whether the sheriffs and their deputies have the authority to arrest under any provision in the State Constitution. Short previously stated the decision to put the bill back on the agenda without a request from him amounted to the legislation being “used as a pawn in an apparent game of politics.”
Short subsequently filed House Concurrent Resolution 42 asking the Delaware Supreme Court for an advisory opinion on whether county sheriffs have arrest authority. It was also considered at Wednesday’s committee hearing. In presenting the resolution, Short noted governors have previously sought advisory opinions and while he conceded he could find no precedent for the legislature seeking such an opinion, he believes only the court can settle the matter definitively.
“Irrespective of what [House Bill] 325 or 290 will do, we are probably still going to have the same problem we have today until we define this issue of ‘conservator of the peace’.” said Short. “I think it will save us time to get to the end result.”
House Speaker and committee member Robert Gilligan (D-Sherwood Park) sharply criticized Short’s argument, suggesting it would set a dangerous precedent.
“If we were to [seek the court's opinion], every time there is a controversial issue, people would say ‘let’s go to the court and ask them’,” said Speaker Gilligan. “We need to go to the courts after the legislation has passed.”
HB 325 and HB 290 were offered at the request of Sussex County Council, which has unanimously endorsed efforts to declare that sheriffs and their deputies cannot make arrests. Sussex County Council recently released a 64-page report detailing issues that have arisen relating to the Sheriff Christopher and his deputies making arrests. Sussex County officials have said that if the sheriff continues to make illegal arrests, the county could face serious lawsuits that could cost taxpayers hundreds of thousands of dollars.
Addressing the committee Wednesday before Sheriff Christopher’s lawsuit was announced, Sussex County Administrator Todd Lawson reiterated the County’s desire for clarification of the sheriff’s powers either through legislation or the courts.
“This comes down to legality and liability. We feel as though the current sheriff puts the taxpayers and the county at great risk,” said Lawson. “This administrator supports this legislation or Mr. Short’s concurrent resolution—whatever will bring us clarity first.”
It now appears clarification may come from both the legislature and the courts. While the committee tabled Rep. Short’s concurrent resolution, HB 325 is on Thursday’s House agenda. Meanwhile, Sheriff Christopher’s is going forward with his suit that alleges county officials “have sought nullify Sheriff Christopher’s constitutional authority by any means possible,” including “arbitrarily denying” budget requests for equipment, training and staff salaries. Christopher is asking the court to declare he is “Chief Law Enforcement Officer of Sussex County”, and with that title has the power to carry a variety of law enforcement duties, including arrests and traffic stops. He is also asking the court to rule that his role and powers cannot be “abrogated or diminished in any way by any government official, branch of government or other entity within the State of Delaware absent constitutional amendment.”
(UPDATE – 1:30pm Thursday May 10)
Thursday, Sussex County responded to Sheriff Christopher’s suit in a statement.
“Sheriff Christopher has chosen to pursue litigation in trying to resolve the matter of the office’s authority under Delaware law. Sussex County stands firm in its belief, based on numerous State Attorneys General opinions and decades of tradition, that sheriffs and their deputies in Delaware are not law enforcement officers, nor does the County believe they are empowered with arrest authority.
This lawsuit is not litigation in the conventional sense, in which one party is suing another for monetary damages. It is a request for declaratory judgment. In the request for declaratory judgment, the sheriff has asked the court to determine what his authority is. The County intends to assert its position and protect the interests of Sussex County’s citizens.
At this time, the County has not been served. Once the County has received the lawsuit officially, legal counsel will review it and put together the appropriate legal response.”
(UPDATE – 5:00pm Thursday May 10)
The bill seeking to clarify the powers held by county sheriffs in Delaware passed the House of Representatives Thursday. House Bill 325 was approved by a 36-2 vote , with two absent and one not voting.
HB 325 aims to make clear that county sheriffs and their deputies do not have arrest authority.
The bill advances to the Senate a day after Sussex County sheriff Jeff Christopher filed suit in Superior Court against Sussex County, its county administrator, and county council asking the court to affirm he has the constitutional authority to to carry out a variety of law enforcement duties, including arrests and traffic stops.
The only no votes were from Rep. John Atkins (D-Millsboro) and Minority Whip Rep. Gerald Hocker (R-Ocean View). Rep. David Wilson (R-Bridgeville) was the “no vote”. On the House floor after the vote, Rep. Wilson explained he did not vote because he feels the question of the sheriffs’ powers is constitutional not statutory and best decided in the courts. he would have preferred an advisory opinion from the Supreme Court before pursuing legislation
“The question is simple:’Does the State Constitution give the sheriff enforcement powers?’ By passing House Bill 325, we are simply adding a statute that may prove unconstitutional,” said Rep. Wilson. “I see no reason to add fuel to a fire that doesn’t need to be stoked. Rather than add [this bill] to the statue, I prefer that the courts of the State of Delaware resolve this constitutional dilemma.”
HB 325 now heads to the Senate for consideration.
Lobbying reform bill heads to House floor
The House Administration committee also voted to release a bill aimed at shedding more light on the work lobbyists do in Dover. Senate Bill 185 would require that lobbyists specifically identify each piece of legislation, each area of the budget or the bond bill, or each proposed state agency regulation that they are lobbying to change. It would also require lobbyists to make those disclosures within five business days of having “direct communication” with a legislator or the Lieutenant Governor or Governor on a bill, or communication with a state agency employee regarding a proposed regulation. The reporting will be done electronically and be available to the public online.
The bill was voted out of committee over the concerns expressed House Minority leader and committee member Gregory Lavelle (R-Brandywine Hundred) that the bill amounted to “registering speech.” Lavelle has also offered an amendment that would require key executive branch legislative contacts to report in the same manner as lobbyists. During Wednesday’s hearing, some lobbyists and other public policy advocates asked that parts of the bill, including what constitutes “direct communication,” be better defined.
SB 185 passed the Senate last week by a 15-5 vote with one absent. Gov. Jack Markell (D) supports the legislation. It is part of open government agenda he highlighted in his January State of the State address.