Jeffrey S. CHRISTOPHER, Plaintiff Below, Appellant,
SUSSEX COUNTY, a political subdivision of the State of Delaware; Michael H. Vincent, Sussex County Council President; Samuel R. Wilson, Sussex County Council Vice President; Joan R. Deaver, Sussex County Council Councilwoman; George R. Cole, Sussex County Councilman; Vance C. Phillips, Sussex County Council Councilman; Todd F. Lawson, Sussex County Administrator; and the State of Delaware, Defendants Below, Appellee.
Submitted: Sept. 11, 2013.
Court Below— Superior Court of the State of Delaware, in and for Sussex County, C.A. No. S12C05018.
Upon appeal from the Superior Court.
Julianne E. Murray, Esquire (argued), and Feliks Finkel, Esquire, Murray Law LLC, Georgetown, Delaware, for appellant.
Edward K. Black, Esquire, Department of Justice, Wilmington, Delaware, for appellee, State of Delaware.
David N. Rutt, Esquire, Moore & Rutt, P.A., Georgetown, Delaware, for appellee, Sussex County.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices (constituting the Court en Banc).
On August 9, 2012, the plaintiff-appellant, Jeffrey S. Christopher, Sheriff of Sussex County, Delaware (" Sheriff" ), filed his Second Amended Complaint in the Superior Court of the State of Delaware naming as defendants-appellees, Sussex County, a political entity, and its individual Council members: Michael H. Vincent, Samuel R. Wilson, Joan R. Deaver, George B. Cole and Vance C. Phillips, and the County Administrator, Todd F. Lawson, all in their representative capacity. Collectively, these defendants shall be referred to as " Sussex County." The Second Amended Complaint also named the State of Delaware (" State" ) as a defendant. The Complaint sought a declaratory judgment regarding the powers of the sheriff in Delaware, particularly the Sheriff in Sussex County. It also sought a determination that recently enacted House Bill 325 (" HB 325" ) is unconstitutional.
Specifically, the Sheriff asked the Superior Court for a declaratory judgment stating that he has arrest powers in criminal cases as a core or fundamental tool to perform his constitutional designation as a " conservator of the peace." The Superior Court requested briefing on the constitutionality of then recently-enacted HB 325, which eliminated the Sheriff's arrest powers in criminal cases. All parties filed cross-motions for Summary Judgment. The Superior Court issued a Memorandum Opinion granting Summary Judgment to Sussex County and the State, holding " that the common law authority and responsibilities of the Sheriff are subject to modification and restriction" by statutory enactments of the General Assembly. Therefore, the court held that HB 325 was constitutional.
The Delaware Constitution states that " [s]heriffs shall be conservators of the peace within the counties respectively in which they reside."  According to the Sheriff, once embedded in the Delaware Constitution, the sheriff's obligation to act as a " conservator of the peace" became a constitutional obligation and the powers necessary to carry out that obligation became
constitutional— not common law— powers. The Sheriff claims that the essence of the term " conservator of the peace" includes the power to arrest in criminal cases.
The Sheriff asks this Court to rule that the phrase " sheriff shall be the conservator of the peace" embodies (contains) a constitutional right under the Delaware Constitution, and that arrest power is a core tool of the " conservator of the peace" as it applies to the sheriff because a peace officer cannot " [conserve] the peace" without the ability to arrest. The Sheriff submits that by stripping him of arrest powers, the General Assembly violated the Delaware Constitution because it took away a tool indispensable to his constitutional obligation to act as a " conservator of the peace." Therefore, the Sheriff submits, HB 325 impermissibly conflicts with the Delaware Constitution by redefining the term " conservator of the peace." The Sheriff argues that if the General Assembly wants to change the powers of a constitutional office, it must amend the Delaware Constitution.
In this opinion, we hold that the General Assembly may not abrogate a constitutional office or take away the core duties of a constitutional officer without enacting an amendment pursuant to the Delaware Constitution. However, we also hold that 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. Therefore, the judgment of the Superior Court is affirmed on that basis.
On June 19, 2012, the Delaware General Assembly enacted HB 325 with the purpose of " ‘ clarifying ... that the county sheriffs and their deputies do not have arrest authority.’ " The synopsis to HB 325 states that " [h]istorically the sheriffs and deputies have not exercised arrest authority and the Attorney general's office has given an opinion that the Sheriff's power to arrest is no greater than that shared by any citizen."
HB 325 amended several sections of the Delaware Code. Title 11, section 1901(2) of the Delaware Code defines public peace officers as having arrest powers in criminal cases. HB 325 amends title 11 to exclude sheriffs from having arrest power in criminal cases. HB 325 amended section 1935 of title 11 to prohibit sheriffs from executing fresh pursuit of any person. HB 325 repeals section 2103 of title 10, taking away the sheriff's power to assemble posse comitatus. Section 2103 of title 10 explicitly states that " [s]heriffs and deputy sheriffs shall not have any arrest authority." It further provides that " sheriffs and deputy sheriffs may take into custody and transport a person when specifically so ordered by a judge or commissioner of the Superior Court."
Interpreting State Constitutions
State constitutions differ from the United States Constitution in at least two important respects. First, state constitutions are frequently rewritten or amended. Second, state constitutional amendments are made in the text of the
document rather than added as a series of attachments, as is done with the United States Constitution.
The initial Delaware Constitution was written in 1776, and was the first state constitution to be drafted by a convention elected expressly for that purpose.  Delaware's Constitution was revised by other conventions in 1792, 1831, and 1897. Delaware's 1897 Constitution also has been amended many times over the last century by legislative enactments passed by two consecutive sessions of the General Assembly.
The Delaware Bill of Rights provides an excellent example of provisions of the Delaware Constitution that have remained constant. The present format first appeared in the 1792 Delaware Constitution. In providing for the right to trial by jury, the 1792 Delaware Constitution stated that it shall be as " heretofore."  The right that existed " heretofore" in 1792 was the common law right to trial by jury guaranteed by the 1776 Delaware Constitution.  The Delaware Bill of Rights remained virtually unchanged in the 1831 and 1897 Constitutions. Accordingly, to understand the word " heretofore" in the present 1897 Delaware Constitution, one must refer to the Delaware Constitutions of 1831, 1792 and, ultimately, to the retention of the common law right provided for in Delaware's 1776 Constitution.
We make these observations to illustrate the significance of knowing the original text, context, and evolution of any phrase that appears in the present Delaware Constitution. This is especially important because, unlike the United States Constitution, changes have been made directly to the text of the Delaware Constitution and not by a series of amendments at the end.
The terms in the 1897 Delaware Constitution that are at issue in this appeal are " conservator of the peace" and " sheriff."
Conservator of the Peace
The Sheriff argues that he has arrest authority by virtue of his description in the 1897 Delaware Constitution as a " conservator of the peace." The term " conservator of the peace" appeared for the first time in Delaware law in Article XII of the Constitution of 1776: " The Members of the Legislature and Privy Councils shall be Justices of the Peace for the whole state during their continuance in trust; and the Justices of the Courts of Common Pleas shall be Conservators of the Peace in their respective counties." Sheriffs are absent from the class of persons designated as " conservators of the peace" in the 1776 Delaware Constitution.
Not until the 1792 Delaware Constitution were sheriffs, and other office holders added to the list of conservators of the peace:
The members of the Senate and House of Representatives, the Chancellor, the Judges of the Supreme Court, and the Court of Common Pleas, and the Attorney General, shall by virtue of their offices, be conservators of the peace throughout the state; and the Treasurer, Secretary, Clerks of the Supreme Court, Prothonotaries, Registers, Recorders, Sheriffs, and Coroners shall, by virtue of ...