Examination of lower executive power: county sheriffs
Snohomish Sheriff refuses to enforce governor's order, but can he?
On April 21, 2020 the Sheriff of Snohomish County announced that he will not be following the order issued by Governor Inslee. Sheriff Adam Fortney wrote a lengthy Facebook post questioning various policy decisions implemented by Governor Inslee focused on what were deemed essential versus non-essential services (and thus compelled to cease operations). He states: "Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights."
In his subsequent comments Sheriff Fortney indicates that it is "Just an opinion piece." Whether opinion or policy, the question remains: can a sheriff determine a governor's proclamation is unconstitutional and therefore refuse to enforce it.
First, a disclaimer
Whether Sheriff Fortney's preferred policy decisions are correct or his opinion of pandemic models is accurate does not elevate or diminish his legal authority as a Sheriff.
Further, he may be correct. Governor Inslee's proclamation, as opposed to bill signed as law, may not be legal in some respect. The Governor is broadly empowered during an emergency under state law.
This entry is solely concerned with a county sheriff's authority and where it derives from in relation to a refusal to enforce a proclamation. Whether any restrictions imposed by the Governor in relation to the state of emergency deserve its own attention. Finally, this is not a law school textbook intended to instruct on each relevant detail.
Second, a reminder
There is a Washington State Constitution and a United States Constitution. There are many amendments to each. There are federal laws and there are state laws. There are decisions from federal courts as to the validity and meaning of federal laws and the United States Constitution. There are state court decisions as to the validity and meaning of state laws and the Washington State Constitution. Laws can be complicated and come from many sources. There are thousands upon thousands of pages defining what is "free speech" (or as the First Amendment puts it "Congress shall make no law ... abridging the freedom of speech").
Whether any law or regulation is unconstitutional can often be a difficult legal question. In a constitutionality setting, the exercise of what are the "police powers" of a state will generally be tested as to whether it is in the interest of the public and that "reasonable" means were used to accomplish the interest. The balancing test can be formulated in several ways, but is not the issue being addressed here.
The United States Constitution does not provide for the duties or powers of a state sheriff. Such local matters are left to the States. The United States Constitution, of course, provides limitations on a local sheriff's authority (e.g. protection against unreasonable search and seizure) just as it limits all state actors. However, the duties and powers of a sheriff is derived from more local sources.
The Washington State Constitution (Article III) creates the office of State Governor. "The supreme executive power of this state shall be vested in a governor."
Statutory authority in an emergency
The phrase "supreme executive" is broad, but not specific. The legislature has enacted various statutes that clarify the authority of the governor. These laws apply within Washington State only.
A Governor may also be conferred additional powers such as legislative ones to some extent. RCW 43.06.010 provides the relevant statutory authority of the Washington State Governor for purposes of this discussion. It grants, among others, the power to "supervise the conduct of all executive" offices and "proclaim a state of emergency" "after finding that a public disorder ... exists within this state or any part thereof which affects life, health."
The Washington Emergency Management Act, RCW 38.52 provides several relevant definitions including that "Emergency or disaster . . . means an event or set of circumstances which: (i) demands immediate action to preserve public health . . . or (ii) reaches such a dimension or degree of destructiveness as to warrant the governor proclaiming a state of emergency under RCW 43.06."
The powers of the governor during a state of emergency are found, in part, at RCW 43.06.220. The first power listed is the authority to issue an order prohibiting "any person being on the public streets...or at any other public place during the hours declared by the governor." The second listed is allowing the governor to prohibit "any number of persons ...from assembling or gathering on ... open areas of this state, either public or private." It also references ability to prohibit "sale, purchase or dispensing of other commodities or goods, as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace." And, as a general catch-all "such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health."
By statute the order of the governor is not a suggestion, but is an order with the effect of law. RCW 43.06.220 "[a]ny person willfully violating any provision of an order issued by the governor under this section is guilty of a gross misdemeanor."
The Washington Supreme Court has examined a governor's emergency authority
Washington State has had state of emergency orders before. One famous example is the 1980 eruption of Mount St. Helens. As part of the emergency declaration at the time the town of Cougar was placed within a "red zone" that largely prohibited use or occupancy, thereby causing business owners to bring a lawsuit complaining that the restrictions were harming the local economy of Cougar.
The Washington Supreme Court determined that the restrictions were not a taking of property without just compensation (in violation of the 5th Amendment), a violation of civil rights, or an interference with business expectations (among other claims that were also denied). Importantly here, the Washington Supreme Court upheld RCW 43.06 grant of authority to the governor to issue a state of emergency proclamation and executive orders. Taken together with RCW 38.52 and other statutes the Washington Supreme Court stated that the "statutory powers evidence a clear intent by the legislature to delegate requisite police power to the governor in times of emergency. The necessity for such delegation is readily apparent."
The Supreme Court at that time also determined that the "Governor's discretion is the same in determining both the start and end of" a state of emergency.
Not a constitutionally empowered office
The office of a county sheriff is not created directly by the Washington State Constitution. The State constitution requires the legislature to enact several offices: "by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office." The Sheriff derives its authority only from legislative enactment.
The general and uniform laws were primarily enacted at RCW 36.16. The office of county sheriff is one of the enumerated elected offices that each county in Washington has and is detailed in RCW 36.28 as the "chief executive officer and conservator of the peace of the county."
Each county in Washington has a sort of constitution as well known as a county charter. Relevant to Snohomish County the charter describes the powers and duties of the sheriff as "established by ordinance" and as having, along with other executive offices, "all executive powers of the county under this charter." Snohomish county code 2.10.030 defers creating such an ordinance to simply indicate "the county sheriff shall have all the powers, authorities and duties granted to and imposed upon a sheriff by state law." This type of deferral to State law is common in numerous local ordinances.
The general duties that a sheriff is obliged to perform are enacted at RCW 36.28.010. The sheriff is not granted any authority to write laws or determine the constitutionality of enacted laws. Of the codified duties the only one potentially relevant to enforcement of a governor's proclamation would be the requirement that the sheriff "shall arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses."
As previously discussed, the willful violation of a governor's state of emergency proclamation is a crime under RCW 43.06.220. A sheriff is obliged to ("shall") arrest those guilty of crimes. The refusal to do so is a refusal to perform those acts required of the sheriff by law.
Sheriffs have always been given a degree of discretion not to pursue every apparent violation of law. A "warning" for a speeding infraction, dispersing minor altercations, etc. An outright refusal to enforce a full set of laws is different.
The Snohomish County Sheriff is not alone in refusing to perform statutory duties in recent times. King County Sheriff Mitzi G. Johanknecht, on March 17, 2020 suspended processing writs of unlawful detainer (evictions) that would be issued to the King County Sheriff's office. Service of writs delivered is also an obligatory duty under RCW 36.28.010. King County Sheriff's office cited anticipated staff shortfalls and health concerns. Unlike the Snohomish Sheriff, the King County Sheriff stressed the temporary nature of the suspension, respect for the Courty, and the necessity of using its officers for emergencies during the crisis.
The Snohomish County Sheriff is intentionally refusing to enforce a series of validly issued proclamations. He is doing so because he has reached a different policy conclusion, not in an exercise of any constitutional or statutory authority. His policy decision may be better or more popular. He may seek re-election based on it or seek higher office so that he may set such policies in the future.
Responses from other officials.
The Washington State Sheriff's Association, a voluntary organization that is not an official government association, stated on April 22nd, 2020 stating in part "The Governor has issued the order under his authority in this crisis...we are committed to ...use our discretion in considering the appropriate level of enforcement."
The Governor and the Attorney General issued a release reflecting disappointment toward Sheriff Fortney.
The Snohomish County Prosecuting Attorney has put forward a statement indicating that the Governor does have the requisite responsibility in times of emergency and that any "attempt to undermine that authority is both irresponsible, unhelpful . . . and contrary to the rule of law...let me be clear: actions have consequences. State and local emergency proclamations are legally binding on all of us whether we agree with them or not." The prosecutor concludes with "A violation of the law carries consequences and as a county prosecutor I will continue to uphold and exercise my prosecutorial discretion."