Attorney General: Mitchell R. Harris, Esq., Chairman, State Marshal Commission, 2001-017 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 5, 2001

Mitchell R. Harris, Esq., Chairman
State Marshal Commission
c/o Day, Berry & Howard
CityPlace I
Hartford, CT 06103-3499

Dear Attorney Harris:

As Chairman of the State Marshal Commission you have requested a formal Opinion of the Attorney General as to the following four questions:

  1. While the State Marshal Commission has duly appointed all state marshals, none has been “sworn.” Must state marshals be "sworn"? If so, what oath is to be administered and who may administer it?
  2. Does a state marshal have "police" or law enforcement powers? If so, what is the scope of such powers?
  3. State marshals are referred to in the General Statutes as "peace officers." What powers are conferred upon "peace officers"? Are these the only "police" or law enforcement powers that state marshals possess?
  4. Do you have any suggested modifications to the above1 certificate language?

For the reasons explained below, our answers to these questions are as follows:

  1. State marshals should be sworn. The oath to be administered is the oath prescribed by Conn. Const. Art. XI, §1, which is also set forth at the beginning of Conn. Gen. Stat. §1-25. The oath may be administered by any officer empowered to administer an oath in Conn. Gen. Stat. §1-24. It is prudent for the State Marshal Commission to have the oath executed in writing.
  2. A State Marshal has very limited "police" or law enforcement powers, that may be exercised only when a State Marshal is acting pursuant to his authority. In addition, the State Marshal Commission may further regulate the actual exercise of such powers through the Commission’s authority to establish professional requirements and training standards.
  3. As "peace officers" State Marshals have very limited arrest authority. No State Marshal may actually exercise such authority without first obtaining proper training as described below.
  4. Any certificate or credential issued by the State Marshal Commission to a State Marshal should do no more than accurately describe the actual status of the State Marshal. The language suggested in footnote 1 is not appropriate since it is broader in scope than the status of a State Marshal that we have described in this opinion. Suggested text is included in the narrative below.

The reasons for these conclusions are explained below.

I. State Marshals Should Be Sworn.

The Sheriffs system in Connecticut was abolished by Constitutional Amendment effective November 30, 2000. The process serving functions formerly handled by sheriffs are now performed by State Marshals. State Marshals are authorized "to provide legal execution and service of process." Conn. Gen. Stat. §6-38a.

The first question posed in your request is whether or not State Marshals should be sworn. The text of Conn. Const. Art. XI, §1 provides as follows:

Members of the general assembly, and all officers, executive and judicial, shall, before they enter on the duties of their respective offices, take the following oath or affirmation, to wit: [text of oath omitted].

Conn. Const. Art. XI, §1 (emphasis added).

If a State Marshal is an officer, then being sworn is required. If a State Marshal is not an officer, then no oath is required.2

The test for determining whether someone is an officer is as follows:

"A public office is a right, authority, and duty created and conferred by law, by which *** an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public." [Citation omitted]. "It implies a delegation of a portion of the sovereign power to and possession of it by the person filling the office." [Citations omitted]. It is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power. [Citations omitted].

State ex rel. Stage v. Mackie, 82 Conn. 398, 401 (1909).

The provisions of Conn. Gen. Stat. §6-38a3 clearly authorize each State Marshal "to provide legal execution and service of process…" Service of process in Connecticut has always been considered a sovereign function of government entrusted to public officials empowered by law. "It is the wise policy of the law that its process shall be directed to known public officers, and the law sanctions a departure from this policy only in cases of supposed necessity. Statutes authorizing such departure should receive a strict construction. Eno v. Frisbie, 5 Day 122, 127 [(Conn. 1811)]." Kelley v. Kelley, 83 Conn. 274, 276 (1910). Service of process is a sovereign function for the overall benefit of the public through enabling the fair administration of our judicial system and enforcement of judicial decrees. By this standard each State Marshal in whom is vested the authority to serve process is an "officer" who is required to be sworn.4

The form of oath for an "officer" is prescribed by Conn. Const. Art. XI, §1, and restated in Conn. Gen. Stat. §1-25. Applied to a State Marshal the form of the oath would be as follows:

You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the office of [Connecticut State Marshal] to the best of your abilities. So help you God.

Conn. Const. Art. XI, §1; Conn. Gen. Stat. §1-25.

This oath can be administered by any of the many categories of officer empowered by Conn. Gen. Stat. §1-24 to administer oaths. It is also prudent for the State Marshal Commission to maintain a written record of the oath which can contain the text of the oath, the dated original signature of the State Marshal, a proper certificate of the administration of the oath containing the original dated signature of the officer administering the oath, title of the officer, and place where the oath was administered.

Since Conn. Const. Art. XI, §1 requires the officer to be sworn before assuming the duties of the office, the State Marshal Commission should take steps to ensure that new State Marshals in the future are in fact sworn before beginning to function as State Marshals. However, the fact that existing State Marshals have been performing State Marshal duties prior to being sworn does not invalidate any of their actions. See, Berger v. Town of Guilford, 136 Conn. 71, 81 - 82 (1949); see also, State ex rel. Comstock v. Hempstead, 83 Conn. 554, 557, (1910); State ex rel. Eberle v. Clark, 87 Conn. 537, 540 - 541 (1913).

II. Nature of the Authority of State Marshals.

State Marshals have only the authority specifically granted them by statute. There is simply no source of law other than statute authorizing State Marshals to do anything.5

Specific statutory provisions empower State Marshals, as follows:

     A. Service of Process.

The provisions of Conn. Gen. Stat. §6-38a give State Marshals "authority to provide legal execution and service of process... as an independent contractor compensated on a fee for service basis." This would empower each State Marshal to serve all legal process, civil or criminal,6 given to the State Marshal for service.

     B. "Peace Officer" Status.

The provisions of Conn. Gen. Stat. §53a-3(9) give "peace officer" status to, inter alia, "a state marshal while exercising authority granted under any provision of the general statutes…" This status is limited to those times that a State Marshal is actually exercising authority granted by statute. Accordingly, a State Marshal is a peace officer only while actually performing duties that a State Marshal is statutorily empowered to perform, that is while providing legal execution and service of process. By contrast, the State Police or members of a local police department are peace officers 24 hours a day, whether or not on duty. A State Marshal cannot function as a peace officer unless otherwise engaged in a State Marshal function (i.e. while actually serving process).

The primary significance of "peace officer" status here is in relation to other statutes that specifically refer to such status. For example, crimes associated with interfering with or assaulting an officer in Conn. Gen. Stat. §§53a-167a, 53a-167b and 53a-167c could apply to interference with or assault on a State Marshal actually engaged in the service of process.

     C. Arrest Authority.

The provisions of Conn. Gen. Stat. §54-1f(a) authorize all "peace officers" to make warrantless arrests.7 A State Marshal is a peace officer only while actually exercising authority granted under any provision of the general statutes. Accordingly, a State Marshal is only authorized to make a warrantless arrest while otherwise exercising a State Marshal’s authority, such as actually attempting to serve process.

For these reasons, the outer bounds of the authority of a State Marshal are very different from those of a police officer. While a state trooper or member of a local police department is a peace officer 24 hours a day, whether or not on duty, and is empowered to act if such officer should come upon an incident warranting intervention by a law enforcement officer, a State Marshal is not. Unless the State Marshal is actually engaged in the performance of an authorized function, the State Marshal is simply not authorized to function as a peace officer. Limitations on the exercise of police powers by State Marshals are discussed below.

It is important to bear in mind that the primary function of a State Marshal, as specified in Conn. Gen. Stat. §6-38a, is providing service and execution of process. State Marshals are not generally empowered, as police officers are, to enforce the criminal laws of the State.8

III. Limitations On Police Powers of State Marshals.

To the extent State Marshals possess police powers, those powers are extremely limited. In addition, the State Marshal Commission has the authority to further circumscribe the powers that State Marshals may exercise.

     A. Authority of the State Marshal Commission.

The State Marshal Commission, among other things, is empowered to "establish professional standards, including training requirements…" for State Marshals. Conn. Gen. Stat. §6-38b(f). Through establishing professional standards and training requirements the State Marshal Commission can limit the duties State Marshals are empowered to perform. For example, although their limited peace officer status authorizes State Marshals to make arrests while attempting to serve process, the State Marshal Commission may require specific training as a prerequisite for State Marshals to make such arrests. Any State Marshal who did not complete such training or maintain the required certification would not be authorized to make arrests. The State Marshal Commission may exercise this authority in any area related to professional standards or training requirements within the scope of a State Marshal’s authority that the State Marshal Commission, in its discretion, deemed appropriate.

     B. Any Officer Exercising Criminal Enforcement Authority Should Be Properly Trained.

While this opinion will not restate several decades of judicial decisions concerning the enforcement of criminal laws, it is well established in this day and age that no officer should in fact exercise any function associated with the enforcement of the criminal laws without training in criminal law and procedure that is current. To the extent that State Marshals are empowered to serve criminal process, or to make arrests in very limited circumstances, the State Marshal Commission should take great care to insure that no State Marshal actually exercises such authority in the absence of appropriate and current training and certification.

     C. Role of the Police Officer Training Council.

The Police Officer Standards and Training Council is created by Conn. Gen. Stat. §§7-294a, et seq. The POTC is generally empowered to establish minimum standards for training and certification of police officers, among other things. Conn. Gen. Stat. §7-294d. Failure to obtain or retain certification from the POTC could result in a person not being permitted to function as a police officer. Conn. Gen. Stat. §7-294a(b). The POTC statutes also apply to "any person who performs police functions," which includes a person who in the course of official duties "carries a firearm and exercises arrest powers pursuant to [Conn. Gen. Stat.] section 54-1f." Conn. Gen. Stat. §7-294d(e). Certain categories of officer, such as the State Police, are excluded from the POTC statutes. Conn. Gen. Stat. §7-294d(f).9

State Marshals are not included in the list of law enforcement officers who are exempt from the permit requirements of Connecticut firearms laws. E.g., Conn. Gen. Stat. §29-35(a). While Public Act 00-99 eliminated sheriffs from those exempted from the permit requirement, the Act did not substitute State Marshals. This means that a State Marshal is no different from any other member of the general public in being required to obtain a firearms permit where such a permit is required by Connecticut law. That State Marshals are not exempted from these permit requirements also suggests that the General Assembly did not intend that they carry firearms in the ordinary course of performing State Marshal duties even if they have a permit to carry a weapon while not in the performance of official duties.

Should the State Marshal Commission authorize a State Marshal to carry a firearm while performing State Marshal duties, any State Marshal authorized to carry a firearm would be covered by the POTC statutes since a State Marshal who carried a firearm would meet both prongs of Conn. Gen. Stat. §7-294d(e) — carrying a firearm and exercising arrest authority under Conn. Gen. Stat. §54-1f. Thus, if the State Marshal Commission authorizes State Marshals to carry a firearm, training pursuant to the POTC statutes is required. Furthermore, the provisions of Conn. Gen. Stat. §54-1f(c) appear to authorize “immediate pursuit” only by a State Marshal who has been certified under the POTC statutes. The text of Public Act 00-99, §6 strongly suggests that the General Assembly intended that only those State Marshals who were actually certified by the POTC could in fact exercise authority with respect to enforcing Connecticut’s criminal laws.

IV. Text of State Marshal Credentials.

The State Marshal Advisory Board has asked that the State Marshal Commission issue certificates to each State Marshal with the following text: "This is to certify that the individual identified below is a duly sworn officer pursuant to Public Act 00-99 and has the police power to enforce the laws of this state and the authority to serve Criminal and Civil process pursuant to the Connecticut General Statutes." (Emphasis omitted). In light of the discussion in the preceding portions of this opinion, such text could be misleading.

While we understand the desirability of issuing appropriate credentials to State Marshals who may need to present such credentials to serve or otherwise execute upon process, such credentials should do no more than accurately state the status of the State Marshal who carries them. One possible version of credentials which is not misleading could read as follows: "This is to certify that the individual identified below is a duly sworn Connecticut State Marshal and has the authority as a Connecticut State Marshal to ‘provide legal execution and service of process’ pursuant to Conn. Gen. Stat. §6-38a."

V. Conclusion.

For the above reasons, it is our opinion that State Marshals should be sworn, that they have very limited "police" or law enforcement powers, that certain of the powers possessed by State Marshals can be further limited by the State Marshal Commission and should only be exercised with proper training, and that any certificates issued to them should do no more than accurately state their actual status.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henri Alexandre
Assistant Attorney General

RB/HA


1The beginning of your letter makes reference to a request by the Marshal Advisory Board for a certificate to be issued to each state marshal stating as follows: "This is to certify that the individual identified below is a duly sworn officer pursuant to Public Act 00-99 and has the police power to enforce the laws of this state and the authority to serve Criminal and Civil process pursuant to the Connecticut General Statutes. (emphasis added)."

2Of course, an oath could still be administered in this circumstance. Such an oath would be gratuitous.

3The provisions of Public Act 00-99 and Public Act 00-210 have been codified into the Connecticut General Statutes. Accordingly, this opinion refers to the current version of Connecticut General Statutes.

4The provisions of Conn. Gen. Stat. §6-38a which empower State Marshals to serve process also categorize them as independent contractors compensated on a fee for service basis. By defining each State Marshal as an "independent contractor" when serving process, the Legislature established both the legal status of the State Marshals performing their authorized function of service of process and the method of their compensation. As independent contractors, State Marshals were designated by the General Assembly to be outside the control of the state when they execute their duties, and so they are not entitled to legal representation or indemnification by the State for their actions as State Marshals. See Hunte v. Blumenthal, 238 Conn.146 (1996); Spring v. Constantino, 168 Conn. 563 (Conn. 1975). This clear, unavoidable dictate of the statute can be altered only by the legislature, if it should choose to do so.

5Unlike the former sheriff system, all duties, status, and the relevant details of the State Marshal's office are defined by statute. The office of sheriff, since abolished, predated our state constitution, and existed as a state constitutional office from early in the 19th century until late last year.

6While a State Marshal who is properly trained and certified would have the authority under Conn. Gen. Stat. §6-38a to serve criminal process, issues concerning a State Marshal actually serving criminal process in Connecticut are largely hypothetical. It is unlikely under Connecticut’s current criminal justice system that a prosecutorial authority or a police department would actually utilize a State Marshal for service of criminal process. In addition, please refer to part III of this opinion with respect to other laws that clearly limit the exercise of criminal law enforcement authority.

7A warrantless arrest is different from an arrest with an arrest warrant. It is also different from taking someone into custody on a capias. As noted in formal Opinion of the Attorney General #2000-010, even though a capias authorizes taking a person into custody, it is a civil rather than criminal process.

8This point marks another major departure from the former sheriff system in Connecticut where the Sheriff, Deputy Sheriffs and Special Deputy Sheriffs continued to have residual authority to enforce criminal laws, even if that authority had not customarily been exercised in practice for some time.

9Sheriffs and Deputy Sheriffs were also excluded from the application of the POTC statutes. Conn. Gen. Stat. §7-294d(f)(5). No such provision excludes State Marshals.


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