The Enforcement of Civil Judgments: England Begins 1066 AD. England Begins 1066 AD. A Sheriff s Role in Civil Litigation December 8, 2016

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1 The Enforcement of Civil Judgments: A Sheriff s Role in Civil Litigation December 8, 2016 By Joseph D. Mallet Joseph D. Mallet 2016 England Begins 1066 AD The Shire was the county or local subdivision. The Reeve was the high ranking ministerial officer. Copyright 2016 by Joseph D. Mallet England Begins 1066 AD The Shire-reeve or Shi reve becomes the Sheriff and is the chief law enforcement officer of the county. He retains powers greater than peacekeeping or policing. Copyright 2016 by Joseph D. Mallet 1

2 Roles in Civil Enforcement Judicial Branch: Issues a Judgment (the white paper) Executive Branch: Enforces the judgment (the green paper) Similar Pre-Judgment actions Claim and Delivery Statutes (I.C et seq.) Attachment and Garnishment Statutes (I.C ) Compare to Post-Judgment Plaintiff wins the case. Awarded a specific asset. Awarded money. Dispute completely resolved. Judge doesn t go out and grab assets. Instead, judge orders Sheriff to do this. 2

3 Special Considerations Officer safety risks and the significant potential for violence. Joseph D. Mallet 2016 Special Considerations Officer safety risks and the significant potential for violence. The civil function is an area of high potential liability. Joseph D. Mallet 2016 The Office of the Sheriff The office of the Sheriff is created by the Idaho Constitution (Art. 18, sec. 6). 3

4 The Office of the Sheriff The office of the Sheriff is created by the Idaho Constitution (Art. 18, sec. 6). The specific powers and duties of the sheriff are created by the legislature (See I.C ). The Office of the Sheriff The office of the Sheriff is created by the Idaho Constitution (Art. 18, sec. 6). The specific powers and duties of the sheriff are created by the legislature. Other county officials (including the Commissioners) have no authority to control the manner in which the sheriff carries out these duties. The Office of the Sheriff How to Address Questions: 1) Consider the difference between your roll and the roll of the courts, and stay inside your lane. 2) Read the statutes. Many duties are mandatory. Know and follow the rules. 4

5 The Sheriff s Statutory Duty I.C Apparently Good Process Must be Executed. A sheriff, or other ministerial officer, is justified in the execution of, and must execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued. The Sheriff s Statutory Duty I.C Apparently Good Process Must be Executed. A sheriff, or other ministerial officer, is justified in the execution of, and must execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued. Elements of I.C The Sheriff Must Execute All process Regular on their face Issued by competent authority Whatever may be the defect in the proceedings 5

6 Must Execute Execution. The act of carrying out or putting into effect (as a court order). Judicial enforcement of a money judgment, usually by seizing and selling the judgment debtor s property. All Process Q: What is Process? A: Process includes all writs, warrants, summons and orders of courts of justice or judicial officers. (I.C ). Regular on its Face Q: What does regular on their face mean? A: Facially Sufficient means a document appears valid on its face. In other words, a writ that meets all of the statutory requirements. 6

7 Facial Validity There are several statutory requirements for a valid writ. If these are not present, then your writ is not valid. Without a valid writ, you have no duty to execute on the writ. The Statutory Requirements: Requirements for a valid Writ of Execution: Must be issued in the name of the people, sealed with the seal of the court, and subscribed by the clerk. (I.C ). The Statutory Requirements: Requirements for a valid Writ of Execution: It must intelligently refer to the judgment, stating the court and the county where the judgment roll is filed. (I.C ). 7

8 The Statutory Requirements: Requirements for a valid Writ of Execution: It must contain the amount of the judgment. (I.C ). It must contain the amount actually due on the judgment. (I.C ). The Statutory Requirements: Requirements for a valid Writ of Execution: It must be directed to the Sheriff of the county where the property, or some part thereof, is situated. (I.C and I.C ). Issued by Competent Authority The statute says the writ must be issued by competent authority. In Idaho, that is the Clerk of the Court. (I.C must be issued in the name of the people, and subscribed by the clerk ) 8

9 An altered writ. Signed & Stamped by clerk? Refer to judgment? State & County? Judgment amount? Amount due? Correct Sheriff? What about the change? An Altered Writ A writ must be issued by the clerk of the court to be valid (I.C ) If something added or changed after writ issued by the clerk, although original writ was issued by the clerk, the new or amended writ was not. Look for initials by court clerk. It s a felony for a private person to alter an official govt. record. (I.C ). Sheriff s Fees I.C addresses sheriff s fees. You can only charge fee for certain items. The fee has to be set at a default amount unless set higher by BOCC resolution upon proof of actual cost. I.C allows you to demand prepayment of sheriff s fees. Joseph D. Mallet

10 Whatever may be the defect in the proceedings Q: What if someone brings in proof that there was a miscarriage of justice that led to the entry of the judgment being enforced? Whatever may be the defect in the proceedings Q: What if someone brings in proof that there was a miscarriage of justice that led to the entry of the judgment being enforced? A: Claimed defects in the underlying proceeding must be raised and addressed in court. You are powerless to second guess the court that issued the judgment or writ. Roth v. Duvall 1 Idaho 149 (1867) It is well settled that the sheriff cannot refuse to serve process regularly issued to him because in his opinion it is defective or irregular. If the defendant failed to contest an issue in the case, the sheriff cannot be permitted to do it for him. 10

11 Roth v. Duvall 1 Idaho 149 (1867) Sheriffs have extraordinary powers given them to enable them to perform their duties. When these are faithfully and honestly performed they are always protected; but such powers involve corresponding diligence and fidelity, and for any breach of official duty, either by negligence or design, they are held strictly accountable. Peterson v. Merritt 25 Idaho 324 (1913) Process may have been procured through fraud or perjury, or a court which has ordered it may have committed the most serious errors or have exceeded its jurisdiction but, if these facts do not appear on the face of the process the officer may execute it and legally justify his action. Peterson v. Merritt 25 Idaho 324 (1913) It would be a most dangerous thing if every peace officer should be obliged to examine into the merits of the case and every step taken by the officer who issued process before going about his duty to serve and execute such process. 11

12 Common Defect Claims I wasn t served. The Plaintiff lied to the court. The judge wrote down the wrong: Address of premises for eviction Amount due on the judgment I can t afford to go back to court. This was discharged in bankruptcy. Additional Sheriff s Statutes I.C Refusal to Levy Execution. If the sheriff to whom a writ of execution is delivered neglects or refuses to levy upon or sell any property of the party charged in the writ which is liable to be levied upon and sold, he is liable to the creditor for the value of such property. Additional Sheriff s Statutes I.C Must Exhibit Process. The officer executing process must then, and at all times subsequent, so long as he retains it, upon request show the same, with all papers attached, to any person interested therein. 12

13 Additional Sheriff s Statutes I.C Refusal to Pay Over Money. If he neglects or refuses to pay over, on demand, any money (after deducting his legal fees) to a person, Then the person entitled to the money due, plus 25% damages, plus 10% interest. The Letter of Instruction It must be signed by an attorney (or plaintiff if they are pro se). (I.C ). Acting pursuant to instructions by attorney is a shield to liability. If you get strange or unusual instructions, make sure they are written into the letter of instruction. The Sheriff s Return The Official Report of the Sheriff to the Court. Evidence of result of writ issuance. Essential to allow a Court to keep an accounting of payments. I.C Unless it is a continuing garnishment, writ is returnable from 10 to 60 days. 13

14 The Sheriff s Return I.C Penalty for Failure to Return. If the sheriff does not return a notice or process in his possession with the necessary indorsement thereon without delay, he is liable to the party aggrieved for the sum of $ and for all damages sustained by him. Exemptions A law describing what property of a debtor cannot be attached by a judgment creditor or trustee in bankruptcy to satisfy a debt. Black s Law Dictionary (8 th Edition 2004) Joseph D. Mallet 2016 Common Exemptions Property Exempt for All Purposes (I.C ) Burial Plot Health Aids Social Security and Veteran's Benefits Medical Savings account benefits Unemployment benefits (with exceptions) 14

15 Common Exemptions Property Exemptions with Value Limitations (I.C ) Homestead up to $100, Household Furnishings ($750 per item, up to $7,500 aggregate) Jewelry up to $1000 Tools of the trade up to $2,500 Motor Vehicle up to $7,000 Tangible personal property up to $800 Validity of a Claim The validity of a claim is strictly a matter for the courts to determine. Sheriff s are liable to the plaintiff if they avoid duties by judging exemptions. Resist appeals to avoid taking something because it is exempt, or to ignore a claim because it looks wrong. Validity of a Claim Hypothetical: You garnish a bank account with $1, in it. Debtor files a claim of exemption for the full amount, checking the box for a burial plot. Plaintiff s attorney calls you up and demands that you ignore the claim and send the money immediately. When you resist, he berates you saying it is so obviously false you are aiding in the commission of a fraud. 15

16 Tracing Property If exempt property has been taken by condemnation or has been lost, damaged, or destroyed, and the owner has been indemnified therefore, the individual is entitled to an exemption of proceeds that are traceable for three (3) months after the proceeds are received. (I.C ). Validity of a Claim The law requiring you to forward all claims is mandatory, not discretionary: Within one (1) business day after receiving a claim, the sheriff shall deliver or mail a copy thereof to the plaintiff I.C (a). Mechanics of a Claim The mechanics of a claim are found in I.C This is included in your materials. This is addressed in detail in chapter 10 of the civil manual Because of strict timelines and potential for liability, treat with caution. 16

17 Mechanics of a claim 14 days to file a claim 1 day for sheriff to send to plaintiff. 5 days for plaintiff to file motion opposing claim and notify sheriff. Sheriff waits for an order of a court resolving the claim of exemption (or release). Missing deadlines is fatal. A Stay in the Proceedings The postponement or halting of a proceeding, judgment. In bankruptcy, it is a bar to all judicial and extrajudicial collection efforts against the debtor and the debtor s property. Black s Law Dictionary (8 th edition, 2006)). The Bankruptcy Stay The Automatic Stay (11 U.S.C. 362): Applies automatically when a petition for bankruptcy is filed. Applies to all entities, which includes the Sheriff s office. Prohibits the enforcement, against the debtor or against the property of the estate, of a judgment obtained before the commencement of the case 17

18 The Bankruptcy Stay The Automatic Stay (11 U.S.C. 362): There are very strict penalties if you violate the bankruptcy stay. These penalties only apply when the violation is willful which means after you become aware of the BK filing. Optional Non-Bankruptcy Stay Always something one party can obtain by filing a motion. Optional, not automatic. There is a 14 day automatic (but temporary) stay for an appeal. Sheriff s Keeper Liabillity Price v. Pace, 50 Idaho 353 (1975) A sheriff is required to exercise ordinary reasonable care and diligence in keeping property coming into his possession under process or levy. any negligence on the part of the sheriff s keeper in failing to safely keep or guard the property must be imputed to the sheriff. 18

19 A View From the Street Sgt. Brian Hippe Deputy Jarrod Pirnie Joseph D. Mallet 2016 Civil Deputies quickly realize this is truly a complex arena that POST does not train us for. The Idaho Sheriff s Association Civil Procedural Manual was created to serve as a State wide manual for standardized practices. S.O.P 19

20 Last year the ACSO processed roughly 18,500 civil cases. Most were Writs (By statute only the Sheriff or his/her designee can serve) 0ver 10,000 wage garnishment cases some one time, many are continuing for an average of 3,500 active cases. The average life of a continuing garnishment case is about 1 year. ACSO saw an exchange of over $15,000,000 last year. ACSO receives a tremendous volume of Civil cases H&W contract: ACSO had over 2,800 services resulting in $154K of revenue (covers costs of the staff required to process the workload) Statute provides for the collection of service fees. BOCC approved fee schedule. Sheriff s fees collected last year totaled roughly $1.5m. Making the Civil division of ACSO virtually self-sufficient Staffing: 10 office staff and a supervisor plus a sergeant and 5 deputies & 2 P/T Revenue Civil Field Operations Risky business - most contacts the element of surprise is removed Hostility when taking property Liability Taking direction from plaintiff or their atty (LOI) Evictions resulting in physical move outs 20

21 EVICTIONS Writ of Restitution Levy upon the goods and chattels Deciding what to take or leave behind: our practice is to ask ourselves if the item in question is something that would sell at a Sheriff s sale or if the item is something the Youth Ranch would take. Hazards that put staff at risk of injury or illness should also be in the decision making criteria. Evictions Taking the time to explain Makes all the difference 21

22 ACSO receives over 250 Writs of Restitution each year By taking the time to explain the process and options to the defendant, we have a tremendous success rate in talking people out. End result is 92% of the WOR s don t require us to physically move the defendant out and levy upon their goods and chattels. 22

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25 ACSO The volume of civil cases we receive affords us a great deal of experience. By no means have we seen it all, but we have seen a lot. Please don t hesitate use us as a resource. 25

26 Questions? 26