1 Tennes see Supreme Court Rule 23 provides t hat this Court may, at i ts discret

ion, answer ques

tions of l

aw certifi ed to it by the Supreme

Court of the United States, a C ourt of Appeals of the U nited States, a District Court of the United States in Te nnessee, or a United State s Bankruptcy Court in Tennessee. This rule may be invoked when “the certifying

court determines that, in a procee ding before it, there are quest ions of l aw of this stat e which wi

ll be determina tiv e of the cause and as to which it appears to the cert ifying court there i

s no controlling precedent in the decisions of the Supreme Court of Tennessee.” We have paraphrased the certified question in this case sli ghtly for the purpose s of clarity. 

### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 3, 2000 Se ssion
ROBERT SPURLOCK, ET AL 

### . v. SUMNER COUNTY, TENNESSEE, ET AL 

### .

Certified Question from the United States District Court for the

Middle District of Tennessee No. 3:96-0926 Robert L. Echols, Judge

No. M1999-01486-SC-R23-CQ - Filed April 25, 2001

This case comes to u s on a q uestion of law certified from the United States District Court for the Middle District of Tennessee. 1 The question for our resolution is: “Does a sheriff, when acting in

a law enfo rcem ent capa cit y, [act] as a state [official] or [as a] county official under Tenn esse e law ?” We accept certification and answer that a sheriff acts as a county official under Tennessee law.
Tenn. Sup. Ct. R. 23 Certification of Question of State Law from Federal Court

A DOLPHO A. B IRCH , J R ., J., delivered the opinion of the court, in whichE. R ILEY A NDERSON , C.J., F RANK F. D ROWOTA , III, J ANICE M. H OLDER , and W ILLI AM M. B ARKER , JJ., joined.

Barbara J. Moss and Andrew B. C amp bel l, N ash vil le, Ten nes see, for the mov ant , Su mne r Co unt y.
Rick Halprin, Chica

go, Illinois,

for the responde

nts, Robert Spurloc

k and Ronnie Marsha

ll.

Michael Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, and Ma

ry M. Bers, Assistant Attorney General, for the Amicus Curiae, the State of Te nnessee.

OPINION2 The complai nt name s as d efendants Dist rict Attor

ney General Lawrence Ray Whitley, Assi stant Dist rict Attorney General J erry R. Kitch en, Officer D anny Satt erfield of th e Sumner County Sheri ff’s Depart

ment, Sumner County, the Ci

ty of Hendersonvi

lle, and Henry Apple

.
3 At the time the dist rict court certif ied its question to thi s Court,the caus e was befor e the dis trict court on Sumner County’ s motion t o dismiss

pursuant

to Fed. R. Civ. P. 12(b )(6). In the co ntext of a mo tion to dismiss, the facts

as alleged in the complaint may not be

challenged

. See Hardy v. First American Bank , 774 F. Su pp. 1 078, 1080 (

M.D. Tenn. 1 991). T herefore, we recount the fa cts as alleged in Spurlock and M arshall’s com plaint.

-2- I. Facts and Procedural History

This cause arises from complaints brought in federal court by Robert Spurlock andRonnie Marshall, who allege that numerous defend

ants 2 con spired to wrongfully prosecute, convict, and incarcerate

them for a crime they did not commit. On February 21, 1989, the body of Lonnie Malone

was found in a culvert near Bug Hollow Road in Sumner County, Tennessee. Malone had died from multiple stab wounds. Acco

rding to Spurlock and Mars

hall, 3 Sumner County

Sheriff’s Department officials immediately focused an investigation upo n t hem. A search of Spurlock’s home and automobile

the following day, however, produced no evidence linking Spurlock to the crime, and though he provided the officers with an alibi and alibi witnesses, the officers allegedly

failed to investigate

his claims. Furthermore, Spurlock and Marshall contend that the officers discovered a significant

amount of evidence linking others to the murder but ignored this evidence and failed to provide it to them during proceedings wh erei n th ey had been indicted for Malone’s murder. Sub seq uen tly, H enry Apple, an i nformant, was co mpelled to falsely

implicate Spurlock

and Marshall in Malone’s murder. Based on Apple’s testimony, Spurlock and Marshall were convicte d of and sentenced to imprisonment for life.

Marshall appealed his conviction to the Tennessee Court of Criminal Appeals and was granted a new trial. He then entered a “best interest plea” and was given a ten- year pr obationary sentence. Spurlock also appealed and was granted a new trial based on a finding that the prosecutor failedto furnish exculpatory evidence to Spurlock, failed to correct false testimony given by Apple, and used false evidence in its case in chief. Spurl ock was re tried. Again, based on Apple’s tes tim ony, he was convicted of second degree murde r. T hereafter, however, a fresh investigation into the Malone murder

uncovered addit

ional information l

inking others to th

e crime. As a

result of this new information, other individuals confessed to the murder. On Marc h 6, 1996, the convictions imposed upon Spurlock and Mars hall again were vacated, and new trials were granted. On October 9, 1996, Sp

urlock and Marsh

all filed separate

complaints in the United States District Courtfor the Middle District of Tennessee asserting claims under 42 U.S.C. §§ 1981, 1983, and 1988 basedon the defendants’ alleged conspiracy to w ron gful ly co nvi ct t hem by me ans of p erj ury, subornation of perjury, and withholding of evidence.The complaints were later consolidated by the district court.

With respect to Sumner County, Spurlock and Marshall sought to hold it liable based on the holding of Monell v. New Yor k City Dep t. of Social Services , which provides that local gove rnmental entities may be held liable under 42 U.S.C. § 1983 for policies that caus e4 Under Mone ll , these policie s may be se

t by the governmental

entity’s lawmaker s “or by those whose ed icts or acts may

fairl y be said to repres ent off icial policy. ” 436 U.S. at 694, 98 S. Ct.at 2037-38.

-3- constitutional torts. 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Spurlock and Marshall contended

that Sumner County She riff Richard Sutton was responsible for establishing the law enforcement

policies of Sumner

County

4 and that they

had suffered da

mages as a resu

lt of policies, practices, and customs established or condoned by Sheriff Sutton. In response, Sumner County moved to dismiss the complaint a gainst it, asserting that Sheriff Sutton did not speak with final policymaking

authority for the county bec a use Tennessee law provides that sheriffs are state, not

cou nty, officers. Thus, they contended, the county is not liable for the sheriff’s act ions. Finding Tennessee law to be unclear on the issue, the dis

trict court c

ertified to

this Court the question, previously

stated, whether sheriffs, when acting in a law enforcement capacity , act as state officials

or as county officials. After a thorough review of applicable authority, we conclude that sheriffs act as county officials under Tennessee law.

II. Anal ysis

In McMillian v. Monroe

County, Alab

ama , the United States Supreme Court discussed the analysis to be followed in

determining whe

ther a sheriff a

cts as a state or c

ounty offic

ial. 520 U.S. 781, 117 S. Ct. 1734, 138 L . Ed. 2d 1 (1997). I

n this analys

is it noted, “a court

’s task is to ‘identify those officials or governmental bodi es who spe ak with final policymaking authority for the local governmentalactor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.’” Id. at 784-85, 1 17 S. Ct. a t 1736-37 ( quoting Jett v. Dallas Indep. School Dist. , 491 U.S. 701, 737, 109 S. Ct. 2702, 2724, 105 L. Ed. 2d 598 (1989)). The Court set forth two guiding principles to govern the analysis. First, the Court re jected a “categorical, ‘all or nothing’” approach, noting instead that “[o]ur c

ases on the liabilit

y of lo cal governments under § 1983 instruct us to ask whether governmental officials are final policymake rs for the local government

in aparticular area, or on a particular issue.” Id. at 785, 117 S. Ct. at 1737. “Second,” the Court noted, “our inquiry is dependent on an analy sis of state law.” Id.

While the Court cautioned that “state law [cannot] answer the question for

us by . . . simply labe ling as a state offici

al an official wh

o clearly m

akes county

policy,” the

Court n onetheles s acknowledged

that “our u n derstanding of the actual function of a governmental official, in a particular area, will nece

ssaril y be dependent on the definition of the official’s functions under relevant state law.” Id. at 786, 117 S. Ct. at 1737. Applying these standards, the McMillian Court determinedthat Alabama sheriffs function as state officers when acting in their law enforce ment capacit y. Id. at 793, 117 S. Ct. at 17 40. However, the

Court stressed tha

t its determinati

on wa s firmly grounded in

Alabama law, noti

ng that “since it

is entirely n

atural that both the

roleof sheriffs and the importance of counties vary from State to State, there is no inconsistency created by court decisions that declare she

riffs to be county

officers in one St

ate, and not in

another.” Id. at 795, 117 S. Ct. at 1742.5 See McMillian , 520 U.S. at 787, 117 S. Ct.

at 1737.

-4- Unf ort una tel y, Tennessee law has not always clearly defined wh et her sheriffs function as state or county officers. As we noted in Davidson County v. Kirk-Patrick , county and state functions

are often interdependent under Tennessee law, and thus “[n]o distinct line of demarcation ca n be drawn between county

officers and sta

te officers, wit

h official duty

as the only

test , nor between county purposes and state purposes with objective as the only test.” 266 S.W. 107, 1 09 (Tenn. 1924). Indeed, this Court’s statements regarding whether sheriffs are state or

county officers have at times been rather contradictory. Compare, e. g. , Boswell v. Powell , 43 S.W.2d 495 (1931) (noting that sheriffs are “

essentially

state officers”

); State ex rel. Lit

tle v. Slagle
, 89 S.W. 326 (Tenn. 1905) (holding the office of she

riff tobe a “luc rativ e stat e offi ce” fo r the p urpos es of T enn. C onst. art. II, § 26); with Shelby County Civil Service Meri

t Bd. v. Lively

, 692 S.W.2d 15, 16 (T enn. 1985 ) (defining sheriffs as “co

unty offici

als”); State ex rel. S miley v. Glenn , 54 Tenn. (7 Heisk.) 472 (1872) (listing the sheriff among those officers who are “clearly county officers proper”). Therefore
, we must determine whet

her the greater weight of authority supports defining sheriffs as state or county offi

cers.

Just as the McMillian Court began with an examination of the A labama Constitution, 5 we begin our analysi

s by examining the Tennessee Constitution, for it represents the supreme law of our state. See Summers v. Thompson , 764 S.W.2d 182 (Tenn. 1988) (Drowota, J., conc urring); Pope v. Phifer , 50 Tenn. (3 Heisk.) 682, 686 (1870), overruled onother grounds by Prescott v. Duncan , 148 S.W. 229 (Tenn. 1 912 ). Significantly , the United States S

upreme Court foun

d it “especially important”

that the Alabama Constitution listed sheriffs “as membe rs of the state ‘executive department’” along with the governor, lieutenant gove rnor, attorney

general, sec

retary of state, state treasurer, and othe r offices. McMillian , 520 U.S. at 787, 117 S. Ct. at 1738. Our constitution, however, differs from the Alabama Constitution in that it designates sheriffs as members of county government

rather than as members of the state executive department. Compare Tenn. Const. art. VII, § 1 (listing the she

riff as an “ele

cted officer”

of “county

government”) with

Ala. Const. of

1901, art. V, § 112 (declaring that the state executive department shall consist of various offices including “a sheriff for ea

ch county”

); cf. Colbert v. Bond , 75 S.W. 1061 (Tenn. 1903) (noting that “a broad distinction is made in the Constitution between state and county officers”).

The Tennessee Constitution goes further to provid e that the sheriff

, along with

other county officials,is to be elected by the voters of the county, and vacancies in the office of sheriff are to be filled by the count

y le gislative body. See Tenn. Const. art. V II, §§ 1, 2 . Offices other t han those designated

as offices of county government are dealt with separately in the remaining sections of Article VII of the Tennessee Constitution. See id. art. VII , §§ 3 (state

treasurer and comptroller), 4 (allother offices). Thus, under the Tennessee Constitution, Tenn e ssee sheriffs pe rform their functions more as officials of county government than do their counterpa rts in Alabama.

Further supp o rt for the notion that sheriffs perform their duties as county officers is found in those cases from

this Court which dis

tinguish bet ween state and county offices. In Durham v. Dismukes
, this Court established the criteria to be examined in deciding whether an office functions-5-

as one of the county or of the state. 333 S.W.2d 935 (Tenn. 1960). The Durha m Court analyzed several factors i

n dete rmining that the G eneral Sessions Co

urt for Sumner Coun

ty was a cou

nty office rather than a state office. Id. at 938. Most significant, the Court considered which entity bore the expenses of the

office, noting:

The Legislatur

e in its wisdom . . . did notsee fit to undertake that the Statepay the comp

ensation for the o

perati on o f this office, but provided that the operation of the office, salaries of the officials, etc. should be paid by the county. The primary badge of a State officer

is that the Legislature provide that the State pay the salary of the office.

Id. In addition, the Court noted that the legislative act establishing the office of Genera l Sessions Judge did not evince any

intent to create

a court “the jurisdiction of which should extend beyond the county,” and the “overall duties [of the office] are applicable to the people of the county alone.” Id. at 938.

The factors of the Durham test weigh in favor of a finding that the sheriff is a county officer. The legis lature has provided that the county, not the state, pay s the sheriff’s salary and bears the expenses of the office. See general lyT enn. Code Ann. §§ 8-24-101 to -118 (providing for compensation of clerks and “c ounty offic

ers,” including

sheriffs). Thus,

because the legislature has notprovided that the State should pay the sheriff’s salary, the office of sheriff lacks the “primary badge of a State officer.” See Durham , 333 S.W.2d at 938.

Furthermore, the duties of the sh eriff when acti

ng in his or her la

w enforcement c

apacity ordinarily extend only to

the borders of the county in which the sheriff was elected. See Tenn. Code Ann. § 38-3-102 (1999) (providing that “[t]he sheriff is the principal conservator of the peace in the sheriff’s county”); see also Stateex rel. Thompson v. Reichman , 188 S.W. 225 (Tenn. 1916) (noting that the sheriff “is the commander in chief of the law forces of the county”). Moreover, the ov erall duties of the office of sheriff, which are defined by statute, are largely applicable within the sheriff’s

cou nty. See, e.g. , Tenn. Code Ann. §§ 8-8-201(2)(A) (duty to “[a]ttend upon all the courts held

in the county”); - 201(3) (dut y to “[t]ake ch arge and cus tod y of t he j ail of t he s heri ff’s cou nty, and of the prisoners therein”); -201(5)(A) (duty to “[e]xecute all writs and other process leg ally issued and directed to the sheriff, within the county”); -201(6) (duty to “[e]xecute every notice t o ta ke depositions, delivered to the s heriff, for any

party resi

ding in the county

”); -201(34) (du

ty to “[e]nforce the ordinances of a municipality” within the county, providing the municipality expresses its intent for the she

riff to do so); -209

(duty to “return the tru

th of the case” when process directed to the sherif

f is to be served upon a person who “is a known inhabitant of another county”) ; -211 (providing penalt

ies for t he sheriff’s fa

ilure to prevent ly

nching in his coun

ty); -213 (a

bility to “summon the body

of the county

to [the sheriff’s] aid, in order to keep the peace”). Thus, under the test set forth in Durham , the sheriff appears to act as a county officer

.
In addition to the criteri a set forth in Durham , the language of a number of statutory provisions indicates an intent on the part of the legislature to treat sheriffs as coun

ty officer s. While6 Sumner County co rrectly notes that the GTL A is not applica ble to this case b ecause that statu te does not waive

immunity for intentional to rts such as the o nes alleged in this case. See Tenn. Code Ann. § 29-20-205 (2000) (preserving governmental

immunity from various intentional torts, including civil ri ghts violations); Jenkins v. Lo udon Co unty , 736 S.W.2d 603 (Tenn. 1987) (holding that “the GTLA is generall y intended

to exclude int

entional t

orts”). However,

we reiterate that our purpose in citing the GTLA is not to hold whether the sh eriff bears any state tort liability in this particular

case, but to demonstrate that the legisl ature, by designating the county (and not the State) to be theresponsib le body under t

he GTLA f

or the act

s of the sherif f, has indicat ed that i t views the sher iff t o be a county

offic er and t

h e county should be t

he entity directly accountable for the acts of that offi ce.

7 See Tennessee Dept. of Mental Health and Mental Retardation v. Hughes , 531 S.W.2d 299, 300 (Tenn. 1975).

-6- these provisions may

not be directly

applicable

to this case, they nonetheless support the contention that Tennessee law views sheriffs as cou nty o fficers, not state officers. For example, Tenn. Code Ann. § 8-22-101 (1993), which restricts fees for

services perfo

rmed by cle

rks and county

officers, lists sheriffs as amon

g the “county

officers” to whom the statute applies, and Tenn. Code Ann. § 8- 22-103 (1993) provides that excess fees collected by such officers, again including the she riff, are the property of the county. Even more significant is the legislature’s treatment of the sheriff under the Governmental Tort Liability Act (GTL A), Tenn. Code Ann. § 29-20-10 1 to -407 (2000). 6 In McMillian
, the United States Supre me Court found it par

ticularly noteworthy

that, under Alaba

ma law, the State was liable in tort for the official acts of the sheriff. 52 0 U.S. a t 789, 117 S. Ct. at 1738-39. In contrast, Tennessee law under the GTLA provides that the county bea rs the liability for the sheriff’s torts. The GTLA applies to municipal, county, and local governments, but not to the Stategovernment or

its agencies or

departments, 7 and th e defi niti on of “ emplo yee” und er the GTLA provides, in pertinent

part, that it includes “any official, whether elected or appointed, . . . including the sheriff and the sheriff’s employees .” Tenn. Code Ann. § 29-20-102(2) (2000) (emphasis added). Thus, Tennessee law differs from that of Alabama because a suit brought in Tennessee based on the sheriff’s official acts is brought against the county, not

the State. Compare McMillian , 520 U.S. at 789, 117 S. Ct. at 1738-39 (observing that, under Alabama law, “tort claims brought against sheriffs basedon their official acts . . . c onstitute suits against the State, not suits against the sheriff’s county”).

We cannot accept Sumner County ’s argument that sheriffs must be state officers because they derive their

l aw enforcemen

t authority f

rom state statutes , not county o rdinances. While t

his argument indeed weighs in favor of viewing sheriff s as state offi cers, we find the force of this assertion to be limited. As pointed out by Justice Ginsburg, dissenting in McMillian , m o st states give sheriffs “complete authority to enforce the state criminal law in their cou nties,” and so this factor, if given grea

t weight, w ould yi

eld “an a llstate ca tegoriza tion of she

riffs [as s tate offi cers], despite the Court’ s recognition tha t such blanket cla

ssification is

inappropriate.” 520 U.S. at 801, 117 S. Ct. at 1 74 5 (Ginsburg, J., dissenting). Furthermore, Sumner County’s argument is rather circular. Sumner County

bases its argument upon thepremise that counties have no law enforcement authority of their own; yet, if the legislature views the she rif f as a county officer, then the legislature’s grant of law enfor ceme nt authority to the sheriff appears to serve as a gra nt of law enfor cementau thority to the county, albeit to be exercised exclusively through the office of the county sheriff. Because we find

the legislature’s statutory grant of law enforc ement authority to the-7-

sheriff to be of limited significance, we conclude that this argument fails to outweigh the support found in the Tennessee Constitution, case law, and statutes in favor of the proposition that a sheriff acts as a county officer when enforcing the state’s laws.

We recognize that

the analysis employed in Durham v. Dismukes , upon which we have relied for support, is rather inconsistent with the holding of an earlier case, Dykes v. Hamilton , 191 S.W.2d 155 (Tenn. 1945). In Dykes , the Court held that “the merefact that a person may hold an important public office whose duties are strictly con

fined to county

affa irs , an d hi s sa lar y pai d by t he co unt y, does not make it a county office.” Id. at 158 (citing Prescott v. Duncan , 148 S.W. 229 (Tenn. 1912)). Thus, the Court held, the office of Humane and Juvenile Court Com

missioner for Ham

ilton County

was a state office, despite the expenses of the office being borne by the county a nd despite the office serving county purp

oses, because the juvenile court was “clothed with [the] authority to enforce state laws” and the judge’s

authority “

in the enforcement of laws for the protection of women and children is not simply cou

nty-wide in

effect, but involves the peace and the well-being of society g enerally.” Id. at 159.

However, to the extent that the rationales relied upon by Dykes apply to the office of sheriff, they also apply

to the Sumner County General Sessions Court found to be a county offic e in Durham and to a nu mber of other off ices which have s

ubsequently

been held to be co

unty office

s by th i s Courtthrough application of the factors enunciated in Durham

. See, e.g.
, Lawler v. McCanless , 417 S.W.2d 548, 553 (Tenn. 1967) (finding the General Sessions

Court for Gibson Cou

nty to be a county office despite its

having “jurisdictionover certain sta te matters”); Stambaugh v. Price , 532 S.W.2d 929, 933 (Tenn. 1976) (

fin ding the office of Juvenile Court Judge for Hamblen County to be a county office); Walters v. State ex rel. Schmutzer , 583 S.W.2d 756 (Tenn. 1979) (finding the office of Judge o f the Juveni le Court for Sevier County to be a

county offi

ce); State ex rel. Winstead v. Moody
, 596 S.W.2d 811 (Tenn. 1980) (finding the office of General Sessions Judge of Hamblen County to be a county office). Because Dykeshas been all but disregarded by this line of subsequent aut hor ity, we must conclude that the authority of that case has been somewhat curtailed. Moreover, the case of Prescott v. Duncan , upon which the Dykes court relied, engaged in a detailed analy sis of the history of cou nty go vernment, an d it listed the sheriff among those officers who perform “function[s] of local-self government” within the county. 148 S

. W. 229, 233 (Tenn. 1912). Therefore, we find Dykes to be not fully persuasive in determining whether a sheriff functions as a county or a state officer.

Fin all y, we recognize that the McMillian Court reached a diffe rent c onclusion in determining that Ala bam a sh eri ffs ser ve as sta te o ffi cia ls w hen act ing i n th eir law enfo rcem ent capa cit y. However, we agree with the statement of the United States District Court for the Middle District of Tennessee, whic

h noted:

As emphasized by the McMillian Court, the question of whether an officer is a p olicy maker for any governmental entity must be determinedby reference to state, not federal law. What Alabama law might have to say regarding its officers has no bea ring on whether a-8- Tennessee [officia

l ] receives his [or he

r] decisionmaking

authority from the state or c

ounty gove

rnment.

Pharris v. Looper , 6 F. Supp. 2d 720, 730 (M.D. Te nn. 1998). In sum, though Tennessee law has

no t been ent irely clear or consistent in denominating the role of the sheriff, we find the greater weight of authority to support the proposition that the sheriff serves

as a county official when acting in his or her law enforcement capacity. The Tenne ssee Constitution, the line of cases from this Court distinguishing betweenstate and county officials under the Durham test, and Tenness

ee statutes all provide support for this pr oposition. To adopt a

statement from Justic

e Gin sburg’s d

issent in McMillian
, we hold

that under

Tennessee law, “[a] sheriff locally elected, paid, and equipped, who autonomously

sets and implements

law enforceme

nt policies opera

tive wit hi n the geograp

hic confines of a county, is ordinarily just what he [or she] seems to be: a county official.” McMillian
, 520 U.S. at 804, 117 S. Ct. at 1746 (Ginsburg, J., dissenting).

III. Conclusion

For the foregoingreasons, we answer the question certified to us by the United States District Court for the Middle

District of Tenne

ssee as follows:

A she rif f, w hen act ing i n a l aw en for cem ent capa cit y, acts as a county official under Tennessee law.

Costs on this matter are taxed to the movant, Sumner County, for which execut ion may iss

ue if

nece ssa ry.

___________________________________ ADOLPHO A. B IRCH, JR., JUSTI CE