Can the Idaho Legislature require an elected sheriff to be POST certified before or shortly after taking office?

Plain-English summary

Two Idaho legislators asked whether the state could require an elected sheriff to hold POST certification, the same law-enforcement standard required of all other peace officers in Idaho, including the deputies serving under the sheriff. The Attorney General concluded that the answer was yes.

The Idaho Constitution at art. XVIII, § 6 creates the office of sheriff and requires the Legislature to provide for biennial county elections. That language makes the sheriff a constitutional officer in the sense that the Legislature cannot eliminate the office. But the constitution sets only minimum requirements: it does not list the qualifications a candidate must meet. Existing Idaho Code § 34-618 already imposed several, including a 21-year-old age threshold, U.S. citizenship, one year of residency in the county, and, for first-time sheriffs not already certified, completion of a POST tutorial and attendance at a newly elected sheriffs' school.

Reading the Idaho Supreme Court's longstanding rule that the state constitution is a limitation on legislative power rather than a grant, the opinion concluded that if the Constitution does not forbid a qualification, the Legislature is free to impose it, so long as the qualification does not conflict with what the Constitution itself prescribes. Because Article XVIII, § 6 prescribes nothing about training or certification, requiring POST certification of an elected sheriff would be a permissible legislative addition.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is POST certification?

Police Officer Standards and Training certification, granted by the Idaho POST Council, was the credential required by Idaho Code § 19-5109 of all peace officers in the state, including deputy sheriffs and chiefs of police. The certification involves a basic training academy and ongoing requirements.

Why was this opinion requested?

At the time, Idaho's elected sheriffs were not required to be POST certified before taking office. Some legislators wanted to change that, since deputies under a sheriff had to meet the standard but the elected official supervising them did not. The legislators wanted assurance that adding a certification requirement would not run afoul of the constitutional protection of the sheriff's office.

Does the Idaho Constitution describe what a sheriff has to be?

It does not, beyond what Hodges v. Tucker (1914) called the basic constitutional designation of the office. The Constitution requires that sheriffs be elected biennially in each county. It says nothing about age, training, residency, or qualifications. All of those rules came from statute, primarily Idaho Code § 34-618.

Has Idaho since required POST certification of sheriffs?

The opinion gave a constitutional green light, but did not itself enact any requirement. Whether the Legislature later amended § 34-618 to add a certification mandate is a question of current Idaho law that should be checked in the live statute books and POST Council rules.

Could the same logic apply to other elected county officers?

The opinion focused on the sheriff. Footnote 2 in the AG's analysis noted that other constitutional officers (district judges, county commissioners) already had statutory qualifications beyond what the Constitution itself requires, citing Idaho Code §§ 34-615 and 34-617. The same constitutional reasoning would generally support similar legislation for other county constitutional officers, subject to the same limit: the legislature cannot conflict with what the Constitution itself prescribes.

Background and statutory framework

Article XVIII, § 6 of the Idaho Constitution creates several elected county offices, including the sheriff, and requires biennial elections. It does not enumerate qualifications. The Idaho Supreme Court interpreted this provision in Hodges v. Tucker (1914) as making the sheriff a constitutional officer the legislature cannot abolish, while leaving questions of process to the legislature.

The general principle that anchored the analysis came from Leonardson v. Moon (1969), which described the state constitution as "a limitation, not a grant, of power." Under that principle, the question is what the constitution forbids, not what it permits; if a legislative act is not forbidden, it stands. Wright v. Callahan (1940) extended the same idea to constitutionally created duties: the legislature may add to them as long as the additions do not conflict with the constitutional baseline. Robinson v. Bodily (1975) treated election-law qualifications for county commissioner candidates the same way.

The U.S. Supreme Court's decision in Storer v. Brown (1974) provided a parallel principle from federal election-law doctrine. There, the Court recognized a state's interest in protecting the integrity of its political processes through reasonable candidate-qualification rules. Idaho already required POST certification or its equivalent for deputies under Idaho Code § 19-5109; the AG concluded the same kind of qualification could constitutionally be extended to the elected supervisor of those deputies.

Citations

Idaho Constitution: art. V, § 23; art. XVIII, §§ 6, 10.

Idaho Code: §§ 19-5109, 31-2227, 34-615, 34-617, 34-618.

U.S. Supreme Court: Storer v. Brown, 415 U.S. 724 (1974).

Idaho cases: Hodges v. Tucker, 25 Idaho 563, 138 P. 1139 (1914); Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969); Robinson v. Bodily, 97 Idaho 199, 541 P.2d 623 (1975); Wright v. Callahan, 61 Idaho 167, 99 P.2d 961 (1940).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion10-2.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

ATTORNEY GENERAL OPINION NO. 10-2

To:
The Honorable Denton Darrington
The Honorable Richard Wills
STATEHOUSE MAIL
Per Request for Attorney General's Opinion

You have requested an Attorney General's Opinion regarding whether the
Legislature may mandate that a duly-elected sheriff be certified by the Police Officer
Standards and Training ("POST") Council either prior to his or her election or within a
reasonable time following his or her election. This opinion addresses that question.

QUESTION PRESENTED

May the Idaho Legislature require a sheriff to be certified by POST either prior to
his or her election or within a reasonable period of time following his or her election?

CONCLUSION

The Idaho Legislature currently requires sheriffs to satisfy certain requirements
including, in the case of first-time sheriffs who have not previously been certified by
POST, completion of a tutorial prescribed by POST and other training requirements. The
Legislature could expand the qualification requirements to include POST certification.

ANALYSIS

The Office of Sheriff is provided for in Art. XVIII, sec. 6 of the Idaho
Constitution, which provides, in relevant part:

The legislature by general and uniform laws shall, commencing with the
general election in 1986, provide for the election biennially, in each of the
several counties of the state, of county commissioners and for the election
of a sheriff, a county assessor, a county coroner and a county treasurer, who
is ex-officio public administrator, every four years in each of the several
counties of the state.

Idaho Const. art. XVIII, § 6.

Art. XVIII, sec. 6 contains the only reference to the Office of Sheriff in the Idaho
Constitution. In 1914, the Idaho Supreme Court, in interpreting art. XVIII, sec. 6, stated:

This provision of the Constitution creates, by specific reference all county
officers as constitutional officers, and provides that the legislature, by
general and uniform laws, shall provide for municipal officers as public
convenience may require, and prescribe their duties and fix their terms of
office. This provision of the constitution distinguishes county officers from
municipal officers, making the first constitutional officers, while the
creation of municipal officers is left wholly with the legislature.

Hodges v. Tucker, 25 Idaho 563, 572, 138 P. 1139, 1141 (1914).

That a sheriff is a constitutional officer in the sense that the Legislature must
provide for his or her election, i.e., the Legislature cannot eliminate the Office of Sheriff
absent a constitutional amendment, does not mean the Legislature is prohibited from
requiring a sheriff to meet certain qualifications, which are not mandated by the
Constitution. In fact, the Legislature already does so. Idaho Code § 34-618 provides:

Election of county sheriffs - Qualifications. - (1) At the general election,
1972, and every four (4) years thereafter, a sheriff shall be elected in every
county.

(2) No person shall be elected to the office of sheriff unless he has
attained the age of twenty-one (21) years at the time of election, is a citizen
of the United States and shall have resided within the county one (1) year
next preceding his election.

(5) Each person who has been elected to the office of sheriff for the
first time shall complete a tutorial concerning current Idaho law and rules
as prescribed by the Idaho peace officers standards and training academy,
unless the person is already certified as a chief of police, peace officer or
detention deputy in the state of Idaho, and shall attend the newly elected
sheriffs' school sponsored by the Idaho sheriffs' association.

Most notable among the qualifications listed for purposes of this opinion are, of
course, the qualifications listed in subsection (5), requiring a first-time sheriff to complete
a tutorial prescribed by POST unless he or she is already certified. If the Legislature can
compel completion of a tutorial through POST and attendance at the "newly elected
sheriffs' school," it can undoubtedly require certification. Thus, the question becomes
whether section 34-618 comports with the Constitution. The answer to that question is
yes.

In Leonardson v. Moon, 92 Idaho 796, 806, 451 P.2d 542, 552 (1969), the Idaho
Supreme Court recognized: "Unlike the federal constitution, the state constitution is a
limitation, not a grant, of power." Thus, the Court "look[s] to the state constitution not to
determine what the legislature may do, but to determine what it may not do. If an act of
the legislature is not forbidden by the state or federal constitutions, it must be held valid."
Id. Consistent with this, it is clear the "legislature may prescribe duties in addition to those
prescribed by the Constitution, provided, those prescribed by the legislature do not
conflict with the duties either expressly or impliedly prescribed by the Constitution."
Wright v. Callahan, 61 Idaho 167, 178, 99 P.2d 961, 965 (1940). This principle logically
extends to the Legislature's ability to prescribe certain qualifications required of a
constitutional officer so long as those qualifications do not conflict with the qualifications
prescribed by the Constitution.

Although not directly on point, Robinson v. Bodily, 97 Idaho 199, 541 P.2d 623
(1975), is instructive. In Robinson, the Idaho Supreme Court considered a challenge to
the election laws based on the Bonneville County Clerk's refusal to print the name of a
putative candidate for county commissioner on the general ballot after his unsuccessful
bid in the primary election. The Court rejected the challenge and held "the Idaho
election laws constitutional." In doing so, the Court recognized: "Individuals who wish
to run for public elective office (including county commissioner) must meet certain
qualifications." Implicit in this statement and the Court's ultimate holding is that
requiring an elected official to satisfy certain qualifications is constitutionally permissible.

The United States Supreme Court's opinion in Storer v. Brown, 415 U.S. 724
(1974), is also instructive. In analyzing constitutional questions about candidate
qualifications, the Court noted that "a State has an interest, if not a duty, to protect the
integrity of its political processes from frivolous or fraudulent candidacies." As such, a
state may, in furtherance of its interests and consistent with the Constitution, limit access
to its ballots and impose candidacy requirements. As applied here, the State of Idaho
undoubtedly has an interest in ensuring that individuals elected to the Office of Sheriff
who, along with county prosecutors, are vested with the "primary duty of enforcing all
the penal provisions of any and all statutes of this state" I.C. § 31-2227, meet certain
minimum requirements up to and including POST certification, which is, by statute,
required of all other peace officers in the State of Idaho, including deputy sheriffs. See
I.C. § 19-5109.

In sum, the Idaho Constitution does not prohibit the Legislature from imposing
certain qualifications on sheriffs, including the requirement that they be POST certified.

DATED this 10th day of February, 2010.

LAWRENCE G. WASDEN
Attorney General

ANALYSIS BY:
JESSICA M. LORELLO
Deputy Attorney General