                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                  June 14, 2012 Session

     DANIEL RENTERIA-VILLEGAS ET AL. v. METROPOLITAN
   GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY ET AL.

                            Rule 23 Certified Question of Law
                          from the United States District Court
                           for the Middle District of Tennessee
                        No. 3:11-00218     Kevin H. Sharp, Judge


                 No. M2011-02423-SC-R23-CQ - Filed October 4, 2012


       We accepted a question of law certified by the United States District Court for the
Middle District of Tennessee to determine whether the October 2009 Memorandum of
Agreement between the United States Immigration and Customs Enforcement and the
Metropolitan Government of Nashville and Davidson County, by and through the Davidson
County Sheriff’s Office, violates the Charter of Nashville and Davidson County or other state
law. We conclude that the Memorandum of Agreement does not violate the Charter or any
other state law cited by the plaintiffs.

                     Tenn. Sup. Ct. R. 23 Certified Question of Law

S HARON G. L EE, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., J ANICE
M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, JR., JJ., joined.

Elliott Ozment and Andrew Free, Nashville, Tennessee; Trina Realmuto, Boston,
Massachusetts; William L. Harbison and Phillip F. Cramer, Nashville, Tennessee; Thomas
Fritzsche and Daniel Werner, Atlanta, Georgia, for the plaintiffs, Daniel Renteria-Villegas,
David Ernesto Gutierrez-Turcios, and Rosa Landaverde.

Saul Solomon, Director of Law; Keli J. Oliver and Derrick C. Smith, Assistant Metropolitan
Attorneys, Nashville, Tennessee, for the defendant, Metropolitan Government of Nashville
and Davidson County.

Jerry Martin, United States Attorney; Matthew M. Curley, Assistant United States Attorney;
Tony West, Assistant Attorney General; David J. Kline, Director; Jeffrey Robins, Assistant
Director; Craig A. Defoe, Trial Attorney, for the defendant, United States Immigration and
Customs Enforcement.

Scott P. Tift, Nashville, Tennessee, for the amici curiae, George E. Barrett, C. Dewey
Branstetter, Jr., and Hon. Marietta M. Shipley.

Tricia Herzfeld, Nashville, Tennessee, for the amici curiae, The Tennessee Immigrant and
Refugee Rights Coalition, The American Civil Liberties Union of Tennessee, ASISTA
Immigration Assistance, The National Center for Victims of Crime, and The National Crime
Victim Law Institute at Lewis & Clark Law School.

                                                OPINION

        We accepted this case pursuant to Tennessee Supreme Court Rule 23, which allows
this Court to answer questions of Tennessee law certified by any federal court when “there
are questions of law of this state which will be determinative of the cause and as to which
it appears to the certifying court there is no controlling precedent in the decisions of the
Supreme Court of Tennessee.” Tenn. Sup. Ct. R. 23, § 1. As head of this state’s judiciary
and as part of our inherent judicial power under Article VI, section 1 of the Tennessee
Constitution, we are authorized to answer certified questions of law. Seals v. H & F, Inc.,
301 S.W.3d 237, 241 (Tenn. 2010). Rather than requiring a federal court to make the law
of this state or to abstain from deciding the case until the state courts resolve the point of law,
answering certified questions from federal courts promotes judicial efficiency and comity and
also protects this state’s sovereignty. Haley v. Univ. of Tenn.-Knoxville, 188 S.W.3d 518,
521 (Tenn. 2006). Under Rule 23, we only answer questions of law, not questions of fact or
controversies as a whole. Seals, 301 S.W.3d at 241.

       We address the question of whether the October 2009 Memorandum of Agreement
between the United States Immigration and Customs Enforcement and the Metropolitan
Government of Nashville and Davidson County, by and through the Davidson County
Sheriff’s Office, violates the Charter of Nashville and Davidson County or other state
law. This issue of law arises out of litigation filed by the plaintiffs Daniel Renteria-Villegas,
David Ernesto Gutierrez-Turcios, and Rosa Landaverde against the Metropolitan
Government of Nashville and Davidson County (“Metro”) and the United States Immigration
and Customs Enforcement (“ICE”).1               Plaintiffs Renteria-Villegas and Gutierrez-

        1
          ICE is an agency within the Department of Homeland Security that plays a major role in enforcing
federal immigration statutes and is responsible for conducting criminal investigations to identify, apprehend,
and remove illegal aliens from the United States. See Arizona v. United States, 567 U.S. ___, 132 S. Ct.
2492, 2499-500 (2012) (citing Dept. of Homeland Security, Office of Immigration Enforcement Actions:
                                                                                                 (continued...)

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Turcios allege that Davidson County Sheriff’s officers arrested and wrongfully interrogated
and detained them while the officers investigated the plaintiffs’ immigration status pursuant
to the October 2009 Memorandum of Agreement (“MOA”) entered into between the
Davidson County Sheriff’s Office (“DCSO”) and ICE. Plaintiff Landaverde, a property
owner and taxpayer in Davidson County, alleges that removal proceedings were instituted
against her son after he was processed by Davidson County Sheriff’s officers pursuant to the
MOA. In addition to injunctive relief and damages, the plaintiffs seek declaratory relief
regarding the validity of the MOA entered into between the DCSO and ICE under the
Metropolitan Charter of Nashville and Davidson County (the “Charter”).

        According to the stipulated facts presented with the certified question, the MOA was
entered into under the Immigration and Nationality Act, § 287(g), 8 U.S.C. § 1357(g)
(2006). The MOA authorizes selected DCSO personnel to perform certain immigration
officer duties after being trained and certified by ICE. Those duties include interrogating any
person believed to be an alien as to his right to be or remain in the United States; processing
any removable alien or those aliens who have been arrested for violating a federal, State, or
local offense for immigration violations; serving arrest warrants for immigration violations;
administering oaths, taking and considering evidence, and preparing affidavits and sworn
statements for ICE supervisory review; preparing charging documents for signature of ICE
supervisors; issuing immigration detainers for processing aliens in categories established by
ICE supervisors; and detaining and transporting arrested aliens subject to removal to ICE-
approved detention facilities. DCSO officers perform their duties subject to the limitations
contained in the Standard Operating Procedure in Appendix D 2 to the MOA; provide
notification within twenty-four hours to an ICE supervisor of any detainees placed under
authority; obtain authorization from an ICE supervisor or designee prior to initiating transfer
of § 287(g) detainees into ICE custody; submit a plan to ensure that steps are taken to correct,
modify, or prevent the recurrence of errors when informed by ICE of any error in the records;
and make individualized custody recommendations to ICE.

        We are guided in our interpretation of the Charter by the principles of statutory
construction. Jordan v. Knox Cnty., 213 S.W.3d 751, 763 (Tenn. 2007). We must give full
effect to the intent and purpose of the drafters, see Waldschmidt v. Reassure Am. Life Ins.
Co., 271 S.W.3d 173, 176 (Tenn. 2008), without unduly broadening or restricting the
Charter. Seals, 301 S.W.3d at 242. We must look to the language of the Charter, and if the

        1
         (...continued)
2010, at 1, 2 (2011)).
        2
          Appendix D to the MOA establishes standard, uniform procedures for the implementation and
oversight of the § 287(g) program. It outlines standard procedures for inmate prioritization, training, data
collection, and supervision.

                                                    -3-
language is “clear and unambiguous, . . . we must simply enforce it as
written.” Waldschmidt, 271 S.W.3d at 176. However, if the language is ambiguous, then
we may refer to the broader statutory scheme, the history of the Charter, and other sources
to discern its meaning. See Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.
2008).

       When the Charter was adopted in 1962, it consolidated the functions of the DCSO and
the Nashville Police Department. The stated purpose of the constitutional amendment
authorizing consolidation was to “eliminate duplication and overlapping of duties and
services” to realize “economic savings to taxpayers.” Metro. Gov’t of Nashville & Davidson
Cnty. v. Poe, 383 S.W.2d 265, 277 (1964). It is not likely that the Charter framers envisioned
that decades later, a sheriff would be performing immigration functions for the federal
authorities and, accordingly, there are no Charter provisions that directly address the DCSO’s
authority to perform these duties.

       Consistent with its purpose of consolidation, the Charter delineated the separate duties
of the Sheriff and Police Chief. Charter section 16.05 provides that the Sheriff shall have
such duties prescribed by Tennessee Code Annotated section 8-8-201 or by any other
provisions of general law. Pursuant to section 8-8-201 (2011), the Sheriff has broad general
powers, including the power to enforce the ordinances of the municipality, Tenn. Code Ann.
§ 8-8-201 (34), and “such other duties as are, or may be, imposed by law or custom.” Tenn.
Code Ann. § 8-8-201(36)(b)(2). Section 8-8-201(36)(b)(1) references over 100 code sections
which also set forth the Sheriff’s duties. Tennessee Code Annotated section 38-3-102 (2010)
is among the code sections listed, and it provides

              (a) The sheriff is the principal conservator of the peace in the
              sheriff’s county. It is the sheriff’s duty to suppress all affrays,
              riots, routs, unlawful assemblies, insurrections, or other breaches
              of the peace, to do which the sheriff may summon to such
              sheriff’s aid as many of the inhabitants of the county as such
              sheriff thinks proper.

              (b) It shall be the duty of the sheriffs, in their respective
              counties, by themselves or deputies, to patrol the roads of the
              county, to ferret out crimes, to secure evidence of crimes, and to
              apprehend and arrest criminals.

Contrary to section 38-3-102, however, section 16.05 of the Charter expressly provides that
within the area of the metropolitan government, the Sheriff shall not be the “principal
conservator of the peace.” This function is assigned to the Metropolitan Chief of Police. As


                                              -4-
between the Sheriff and the Police Chief, Charter section 16.05 gives the Sheriff custody and
control of the metropolitan jail, and designates the Police Chief as the “principal conservator
of the peace.” Charter section 2.01 provides that when any power is vested by the Charter
in a specific officer, that officer shall be deemed to have exclusive jurisdiction within the
particular field.

       The Charter marks the boundary between the duties of the Sheriff and the Police
Chief. There is no dispute, however, between the Sheriff and the Police Chief as to who can
perform the duties required by the MOA. The question is whether the Sheriff can perform
these duties when the Police Chief does not do so and Metro has specifically directed the
Sheriff to perform the duties. By resolution, Metro authorized and directed the Sheriff to
perform “such immigration officer functions, in coordination with ICE, as specified in the
[MOA].”3 The Sheriff, acting at the direction of Metro, entered into the MOA with ICE.4

        While the Charter makes the Police Chief the “principal conservator of the peace,” it
does not expressly prohibit the Sheriff from engaging in all activities that could conceivably
be considered “law enforcement.” Nothing in section 16.05 indicates that the Police Chief
is the only conservator of the peace. The role of principal conservator of the peace, assigned
to the sheriff by section 38-3-102, is shared with other officials based on the following
language from section 38-3-103:

                  The judicial and ministerial officers of justice in the state, and
                  the mayor, aldermen, marshals and police of cities and towns,
                  and the director, commissioner, or similar head of any
                  metropolitan or municipal police department, whether elected or
                  appointed, are also conservators of the peace, and are required


        3
            Metro Gov’t of Nashville & Davidson Cnty., Tenn. Resolution No. RS2009-997.
        4
            Tennessee Code Annotated section 50-1-101(a) (2011) provides as follows:

                  For purposes of enforcing federal immigration laws, . . . the legislative
                  body of a municipality or county, or the chief law enforcement officer of
                  the county upon approval by the governing legislative body, may enter into
                  a written agreement, in accordance with federal law, between the
                  municipality or county and the United States department of homeland
                  security concerning the enforcement of federal immigration laws, detention
                  and removals, and investigations in the municipality or county.

Metro was specifically authorized to enter into an agreement with ICE, and Metro authorized the Sheriff to
execute the agreement on Metro’s behalf. Since the Sheriff was not specifically precluded by statute from
signing the agreement, the agreement between ICE and the Sheriff on behalf of Metro is valid.

                                                     -5-
                 to aid in the prevention and suppression of public offenses, and
                 for this purpose may act with all the power of the sheriff.

       This statute, giving more than one governmental official the title and authority of
conservator of the peace, was in effect when the Charter was drafted,5 and the drafters’ use
of similar language in the Charter reflects an awareness of the statute. The language of the
Charter clearly contemplates that the principal conservator of the peace is not the only
conservator of the peace.

        According to the MOA, the purpose of the collaboration between ICE and the Sheriff
is to “enhance the safety and security of communities by focusing resources on identifying
and processing for removal criminal aliens who pose a threat to public safety or danger to the
community.” In other words, the goal of the MOA and its delegation of authority to the
Sheriff is to preserve the public peace through enforcement of federal immigration
law. Since collaborative programs such as the one at issue were rare in 1962 when the
Charter was adopted, it is understandable that the Charter is silent regarding the power of the
city or its agencies to enter into a contract such as the MOA. However, Section 18.17 of the
Charter anticipates cooperative endeavors between metropolitan officials and outside
authorities, as follows:

                 The mayor and council of the metropolitan government shall
                 have the power and authority to participate in, cooperate in and
                 take all necessary action with respect to any and all projects,
                 programs and undertakings of any nature whatsoever authorized
                 by any statute, rule, or regulation of the United States, of the
                 State of Tennessee, or any federal or state agency.

The language of this section encompasses and sanctions the contract in this case, which
constitutes a cooperative law enforcement effort between the Sheriff and ICE.

       The plaintiffs assert that the outcome of this case is controlled by our holding in Poe,
in which, shortly after adoption of the Charter in 1964, we addressed the division of law
enforcement duties between the Sheriff and the Metropolitan Police Department. In Poe, a
declaratory judgment was sought concerning the relationship of the Sheriff’s office to the
Metropolitan Government in matters of duties, functions, budgeting, purchasing, and
personnel policies. 383 S.W.2d at 267. Addressing the issue of whether the “criminal law
enforcement powers and authority in the area of the Metropolitan Government [are] vested
in the Metropolitan Chief of Police exclusively,” id., we held as follows:


       5
           See Tennessee Code 1932, §§ 11418, 11419.

                                                 -6-
                 It is plain to us that it is the purpose and intent of the Charter to
                 take away from the Sheriff the responsibility for the preservation
                 of the public peace, prevention and detection of crime,
                 apprehension of criminals, protection of personal and property
                 rights except insofar as may be necessary and incidental to his
                 general duties as outlined in T.C.A. § 8-8106 and to transfer
                 such duties to the Department of Police of the Metropolitan
                 Government.

Id. at 275 (footnote added).

        Although we stated in Poe that the intent of the Charter was to take away from the
sheriff the responsibility for the preservation of the public peace, necessarily, given the
express language of the Charter, our holding can only be viewed as divesting the Sheriff of
his authority as principal conservator of the peace. As specifically stated at Section 16.05
of the Charter, “the sheriff shall not be the principal conservator of peace. The function as
principal conservator of peace is hereby transferred and assigned to the metropolitan police
chief.” (emphasis added). The express language of the Charter only divested the Sheriff of
his authority as principal conservator of the peace, and it is only to that extent that his role
as conservator of the peace was transferred to the Police Chief. Our holding in Poe is,
consequently, so restricted. Accordingly, our ruling in Poe does not prohibit a construction
of the Charter which allows the Sheriff to perform the federal immigration officer duties set
forth in the MOA, when directed to do so by Metro and in the absence of action by the Police
Chief.

        The plaintiffs also argue that the MOA violates Tennessee Code Annotated section
50-1-101(b), which provides in pertinent part that “[i]f a memorandum of understanding with
the United States department of homeland security is executed pursuant to subsection (a),
municipal and county law enforcement officers shall be designated from local law
enforcement agencies who, . . . shall be trained pursuant to the memorandum of
understanding.” The plaintiffs contend that section 50-1-101(b) directs power, authority, and
duties to local law enforcement officers and that the language of this section falls within the
Charter’s exclusive vestment of law enforcement authority in the Police Chief. We
respectfully disagree. As we have explained, the Charter does not prohibit the Sheriff from
engaging in all law enforcement functions.




       6
           Section 8-810 is now codified at Tennessee Code Annotated section 8-8-201.

                                                   -7-
        The plaintiffs additionally contend that the MOA violates section 1.16.050 of the
Metro Code of Ordinances, which provides in pertinent part that “[t]he sheriff shall permit
the interrogation of prisoners by authorized personnel of the police department.” Metro.
Gov’t of Nashville & Davidson Cnty., Tenn., Code of Ordinances (2012). The plaintiffs
argue that this section indicates that the Police Department, not the DCSO, shall conduct
interrogations of prisoners and that the MOA violates this section to the extent the MOA
authorizes the DCSO to interrogate suspected aliens. We respectfully disagree. The
language of this section merely requires that the DCSO allow the Police Department to
interrogate prisoners in the Sheriff’s custody; it does not prohibit the DCSO from also
interrogating those prisoners. The plaintiffs do not cite to any other state or municipal law
that the MOA allegedly violates, and we are aware of none.

        We conclude that the October 2009 Memorandum of Agreement between the United
States Immigration and Customs Enforcement and the Metropolitan Government of
Nashville and Davidson County, by and through the Davidson County Sheriff’s Office, does
not violate the Charter of Nashville and Davidson County or any other state law cited by the
plaintiffs. The Sheriff of Davidson County has authority under the Charter to perform the
duties enumerated in the Agreement. Costs of this appeal are taxed equally to the plaintiffs,
Daniel Renteria-Villegas, David Ernesto Gutierrez-Turcios, and Rosa Landaverde, for which
execution may issue, if necessary.




                                                   _________________________________
                                                   SHARON G. LEE, JUSTICE




                                             -8-
