Whose job is it to attend Idaho district and magistrate courts: the sheriff, or court-appointed bailiffs and marshals?

Subject

Opinion 87-3: Duty of sheriff to attend courts; court authority to appoint court attendants other than sheriff.

Plain-English summary

Ada County Sheriff Vaughn Killeen asked Attorney General Jim Jones four related questions about who was supposed to attend Idaho's district and magistrate courts: the sheriff or some other officer. Court attendant duties at the time included acting as court crier, providing courtroom security, taking custody of prisoners going to and from jail, and serving warrants issued from the bench. Different counties had developed different practices, with some appointing "bailiffs," "court marshals," or "special constables," sometimes through the sheriff's deputization process and sometimes outside it.

The opinion concluded that the sheriff had primary statutory responsibility to attend all courts in the county, under Idaho Code § 31-2202(4) (as amended in 1970 in connection with the Court Reform Act). There was no statutory authority for courts to appoint a separate bailiff, marshal, constable, or special constable to perform regular court attendant duties. The titles still appeared in some statutes, but the offices either had been quietly phased out (constables, after the 1970 amendments left no mechanism for electing them) or had no independent attendance authority absent deputization by the sheriff (bailiffs and marshals).

Courts did, however, retain inherent authority to appoint attendants in two situations: a peculiar emergency (for example, where the sheriff was personally involved as a witness or party in a case) or where the sheriff had neglected or refused to provide attendance. The Idaho Supreme Court's 1927 decision in State v. Leavitt set out that "exigent circumstances" framework, drawing on the Montana Supreme Court's State ex rel. Hillis v. Sullivan. Where the sheriff was both willing and able to attend, courts had no inherent power to appoint outside attendants in their place.

On liability, the opinion concluded the sheriff was potentially responsible in tort for negligent hiring, retention, training, or supervision of court attendants, as well as for letting non-deputized attendants be supervised carelessly. Whether the sheriff could shelter under the discretionary-function exception to the Idaho Tort Claims Act was uncertain, because the Idaho Supreme Court's recent treatment of that exception (in Sterling v. Bloom, Lewis v. Estate of Smith, and others) had collapsed many former legal questions into jury fact questions.

Currency note

This opinion was issued in 1987. 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.

The Idaho Tort Claims Act has been amended significantly since 1987, and the planning/operational distinction the opinion described has been further refined and partially replaced by the federal-style discretionary-function analysis. The constable office's status and the references to "police courts" all predate the modern court structure. Anyone evaluating a current question about court attendance, bailiff appointment, or sheriff liability should consult the present Idaho Code Title 31, the current Idaho Court Administrative Rules, and recent Idaho Supreme Court guidance, not the framework in this opinion.

What the opinion meant for the parties at the time

For sheriffs, the opinion confirmed both a duty and a corresponding scope of liability. The duty was to attend district court terms and the magistrate's division when ordered by a district judge, plus to maintain custody of prisoners and provide court security. The liability followed: if the sheriff hired or retained a deputy who later abused court-attendant power, the sheriff (and through him the county) was on the hook for negligent hiring or supervision. Even where a court had appointed an outside attendant, the sheriff's failure to perform the statutory duty in the first place could draw him into the liability chain.

For district judges, the opinion was a yellow light. They could not simply create a "marshal" or "bailiff" and confer peace officer status by labeling. They could appoint outside attendants only when the sheriff was unavailable, refusing to act, or in a conflict situation. Where they did appoint outside attendants without proper basis, they exposed themselves and the court to potential liability, beyond what judicial immunity would shelter.

For county commissioners, the opinion implied that the county itself could be on the hook for the sheriff's negligent supervision of court attendants. Sterling v. Bloom had already made clear the sheriff could not hide behind the "no parallel function in private domain" rationale once tasked with these duties.

For court attendants, deputized or not, the opinion was a clear marker that they were operating in a high-liability zone: deadly force, prisoner custody, and warrant service all carried major potential exposure. Training and supervision were not optional.

Common questions

Was the sheriff really required to attend magistrate courts?
Yes, but only when ordered to do so by a district judge. Idaho Code § 31-2202(4) (as amended in 1970) required the sheriff to "[a]ttend all courts, including the magistrate's division of the district court when ordered by a district judge, at their respective terms held within his county, and obey the lawful orders and directions of the courts." The 1970 amendment was tied to the Court Reform Act, which had abolished probate, justice of the peace, and police courts and folded their jurisdiction into district court and the magistrate's division.

What about bailiffs?
There was no separate statutory office of bailiff. At common law, a bailiff was just a deputy sheriff in charge of the jury. In Idaho, where bailiffs continued to attend courts, they did so through deputization by the sheriff under Idaho Code § 31-2003. A "bailiff" who had not been deputized was not a peace officer.

What about marshals?
The 1941 enactment giving city marshals peace officer powers had been recodified in Idaho Code § 50-209 without keeping the marshal reference. By 1987 there was no statutory authority to appoint a "marshal" as a court attendant. A court could not just label someone a marshal and confer peace officer status. If the sheriff cooperated, however, a "marshal" could be deputized and then perform attendance duties.

What about constables?
The constable office had no enabling mechanism after 1970. The Election Reform Act of 1970 redesignated constables as "county officers" but did not create an election or appointment mechanism for them. The opinion concluded that constables "no longer legally exist in Idaho" and that a county-level constable office would in any event be unconstitutional under art. 18, § 6, which permits only enumerated county offices.

What about special constables?
Idaho Code § 31-3010 still authorized magistrates to appoint special constables, but only when a "legally qualified constable" was absent or incapacitated. With no regular constables in existence, there could be no special constables to substitute. Cases like Ketterer v. Billings and Ziegler v. Ziegler had upheld particular court appointments in narrow contexts, but neither addressed whether special constables could perform regular court attendant duties.

When could a court still appoint its own attendant?
Only in "exigent circumstances," meaning either a peculiar emergency (such as a sheriff who was a key witness in the case being heard) or a sheriff who had refused or neglected the attendance duty. The Idaho Supreme Court in State v. Leavitt had laid out that test, drawing on the Montana Supreme Court's State ex rel. Hillis v. Sullivan. Where the sheriff was willing and able, the court had no inherent authority to appoint someone else.

Could the sheriff be sued for what a court-appointed attendant did?
Yes, in some scenarios. The opinion concluded the sheriff was potentially liable for "negligently hiring, retaining or supervising court attendants," and for "knowingly allowing nondeputized attendants to be negligently hired, trained or supervised." Whether the sheriff's failure to provide attendance could be insulated by the discretionary-function exception was uncertain after Lewis v. Estate of Smith; the opinion suggested the question would likely end up before a jury rather than resolved at summary judgment.

Background and statutory framework

The pre-1970 Idaho court structure had separate probate, justice of the peace, and police courts, each with its own attendance rules. Probate courts and justice courts had constables, who were "precinct officers" under art. 18, § 6, of the Idaho Constitution and were elected for fixed terms. Police courts had implied authority to draw on city policemen and marshals. The 1969 Court Reform Act, effective January 1971, abolished all three and folded their jurisdiction into district court and the magistrate's division. The 1970 amendments to Idaho Code § 31-2202 made the sheriff responsible for attending the consolidated court structure.

The 1970 election reform also redesignated constables as "county officers" while removing the precinct-officer election mechanism, which the opinion read as either intentionally phasing out the office or as constitutionally void under art. 18, § 6.

The opinion drew its inherent-authority framework from State v. Leavitt, 44 Idaho 739 (1927), which held: "The inherent power of courts of record to appoint bailiffs when exigency demands cannot be questioned, but the exigency must arise from some peculiar emergency or where the agency vested by law with the power to appoint has neglected or refused to perform its duty."

The Idaho Tort Claims Act analysis drew on Sterling v. Bloom (1986), Jones v. City of St. Maries (1986), and Lewis v. Estate of Smith (1986), all decided shortly before the opinion. Sterling and Jones had eliminated the "no parallel private function" defense for governmental tort liability. Lewis had introduced (or at least heavily endorsed) a "planning/operational" analysis that could shelter discretionary policy choices but not their operational implementation. Crooks v. Maynard (1987), decided just before the opinion, drew the line between judicial and administrative power over court personnel: courts could not direct who served as deputy clerk or deputy sheriff, but could refuse to accept particular assignments and set standards for who served in court-related duties.

Citations

• Idaho Constitution, art. 18, § 6
• Idaho Code §§ 1-103, 1-2217 to 1-2219, 6-904(1), 18-3302, 19-509, 19-510, 19-603, 19-604, 19-4407, 19-5101, 20-601, 31-2002, 31-2003, 31-2202(4), 31-2215, 31-3002, 31-3010, 31-3011
• 1970 Idaho Sess. Laws, ch. 120, § 4
• 1969 Idaho Sess. Laws, ch. 121
• 1967 Idaho Sess. Laws, ch. 429, § 4.55
• 1941 Idaho Sess. Laws, ch. 68
• Crooks v. Maynard, 112 Idaho 312, 732 P.2d 281 (1987)
• Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986)
• Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986)
• Lewis v. Estate of Smith, 111 Idaho 755, 727 P.2d 1183 (1986)
• Intermountain Health Care v. Board of County Commissioners of Madison County, 109 Idaho 685, 710 P.2d 595 (1985)
• Ketterer v. Billings, 106 Idaho 832, 683 P.2d 868 (1984)
• State v. Leavitt, 44 Idaho 739, 260 P. 164 (1927)
• Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct.App. 1985)
• Merrill v. Phelps, 52 Ariz. 526, 84 P.2d 74 (1938)
• State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392 (1913)
• Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)
• Forrester v. White, 792 F.2d 647 (7th Cir. 1986)
• United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)
• 8 C.J.S. Bailiff (1962); 55 C.J.S. Marshal (1948); 80 C.J.S. Sheriffs and Constables §§ 3, 29b(1), 35 (1953)
• Attorney General Opinion 87-1

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-03.pdf

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text.