IN RE REQUEST OF GOV. FOR ADVISORY OPIN.
| Decision Date | 28 October 1998 |
| Docket Number | No. 446, 1998.,446, 1998. |
| Citation | 722 A.2d 307 |
| Parties | In re REQUEST OF the GOVERNOR FOR AN ADVISORY OPINION. |
| Court | United States State Supreme Court of Delaware |
Matthew P. Denn of Young, Conaway, Stargatt & Taylor, L.L.P., and Professor Lawrence A. Hamermesh (argued) of Widener University School of Law, Wilmington, appointed pro bono publico to advocate the affirmative position on the question presented.
Allen M. Terrell, Jr. (argued), Frederick L. Cottrell, III, and Claudia A. DelGross, of Richards, Layton & Finger, Wilmington, appointed pro bono publico to advocate the negative position on the question presented.
Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT and BERGER, Justices. To: The Honorable Thomas R. Carper, Governor of the State of Delaware
In your letter of October 16, 1998, you respectfully requested the opinions of the Justices regarding the following question "touching the proper construction" of the Constitution of Delaware:
Does an individual having been appointed a police officer of the Delaware State Police pursuant to 11 Del.C. § 8301 hold an "office under this State" for the purposes of Article II, § 14 of the Constitution of the State of Delaware?1
Your letter also advised us as follows:
The reason for this request is the candidacy of Trooper Douglas Salter for the Delaware House of Representatives, Seventeenth District. If the above question is answered in the affirmative, Trooper Salter's success in the coming election and acceptance of the Office of State Representative would act as a "resignation or renunciation" of his State Trooper appointment. See Opinion of the Justices, Del.Supr., 647 A.2d 1104, 1104 (1994) (quoting State ex rel. Biggs v. Corley, Del.Supr., 172 A. 415, 419-20 (1934)). An opinion of the Justices addressing whether it is incompatible for an active police officer with the Delaware State Police to serve simultaneously as an elected Representative in the Delaware General Assembly would give much needed guidance on this important constitutional issue which affects two branches of government.
Delaware law permits, but does not require,2 the Justices to give their opinions on questions propounded to them by the Governor or by resolution of both Houses of the General Assembly "touching the proper construction" of the Constitution of Delaware.3 The statutes contemplate that the Justices may each provide an individual opinion or they may join in one opinion, as is the case here. Nevertheless, the opinions rendered pursuant to this statutory authority do not arise in a case or controversy, and are not an opinion of the Supreme Court. Thus, they are not binding in later litigation.4 Though it is discretionary whether to answer questions propounded under this statutory framework, the Justices have decided to exercise their discretion in this instance because the question presented is important, raises an issue of first impression, and it is in the public interest to provide the answer in a timely manner.5
The Justices appointed counsel pro bono publico to brief and argue the respective positions in an expedited manner.6 We commend counsel for their professionalism in providing excellent and timely service to assist the Justices in rendering this opinion. This professional service of counsel for both sides is in the highest tradition of the Delaware Bar. The Justices have, concurrently with the briefing schedule, conducted their own independent research, which has been combined and set forth in this single opinion.
The question presented is a difficult one that is not readily answerable from the statutes, the Constitution, the Constitutional Debates, Delaware judicial decisions or authorities from other jurisdictions. We have consulted as many of these authorities as time has allowed, and we have concluded that we must write on a clean slate on the precise facts before us, though we do so against the backdrop of these authorities and policy considerations implicating fundamental principles of separation of powers. Recognizing the possible practical implications of our opinion, we conclude unanimously that the question must be answered in the affirmative.
This Court has recognized the general legal principle "that where the holder of an office accepts another incompatible office, the acceptance of the second office operates as a resignation or renunciation of the first office as fully and effectually as though the relinquishment of the first office had been an intentional and voluntary act." This principle of law applies where the incompatibility is declared by constitutional provisions such as Article II, § 14, and Article III, § 11, of the Delaware Constitution.7 Moreover, this Court has held that "when the resignation has become effective by the acceptance of the incompatible office, a resignation of the second office does not revive or restore the right to hold the first office which has thus been abandoned or resigned."8
The reason for your request to the Justices regarding the second clause in Article II, § 14, of the Delaware Constitution is the candidacy of Trooper Douglas Salter for the Delaware House of Representatives, Seventeenth District. The question having been answered in the affirmative, Trooper Salter's success in the coming election and acceptance of the Office of State Representative by being sworn into such legislative office would act as his "resignation or renunciation" from the Delaware State Police.9
We begin with the applicable constitutional provision:
No Senator or Representative shall, during the time for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased during such time. No member of Congress, nor any person holding any office under this State, or the United States, except officers usually appointed by the courts of justice respectively, attorneys-at-law and officers of the militia, holding no disqualifying office, shall during his continuance in Congress or in office be a Senator or Representative; nor shall any person while concerned in any army or navy contract be a Senator or Representative.10
The crucial question is: What did the framers intend when they used the phrase, "office under this State"?
The relevant facts underlying the question presented are detailed in your letter of October 16, 1998.
The executive branch of government, as established by the 1897 Delaware Constitution, is currently operated by a cabinet format that includes the Department of Public Safety. The Secretary of Public Safety is appointed by the Governor. The Delaware State Police is an agency within that division of the executive branch.
Pursuant to 11 Del.C. § 8301, the Department of Public Safety has the authority to appoint police officers. Section 8302(a) further defines the powers and duties of these officers:
State police shall have police powers similar to those of sheriffs, constables and other police officers, and shall be conservators of the peace throughout the State, and they shall suppress all acts of violence, and enforce all laws relating to the safety of persons and property. The State Police shall be the primary law-enforcement agency within the State....
The Department of Public Safety determines the rank of State Police officers based on their specific assignments, consistent with the duties and authorities described above.11
Upon commission, all officers of the Delaware State Police are required to take an oath of office pledging faithfully to discharge all the duties of an officer in the Delaware State Police and obey the orders of superior officers:
I do solemnly swear that as long as I am employed by the Delaware State Police I will bear true faith and allegiance to the United States of America and the State of Delaware, and that I will serve them honestly and faithfully against all its enemies whomsoever; that I will support the Constitution of the United States of America and the Constitution of the State of Delaware and faithfully discharge all the duties of an officer in the Delaware State Police according to the best of my ability; that I will obey the orders of the officers appointed over me.
These duties include the execution, administration and enforcement of the laws of this State. To this end, officers have the power and duty to investigate violations of laws within the State and also have the statutory authority and duty to arrest, both with a warrant, and in certain circumstances, without a warrant.12 To effectuate such arrests, officers are given the authority to use "force upon or toward the person ... when the [officer] is making or assisting in making an arrest and believes that such force is immediately necessary to effect the arrest."13 Even deadly force may be used by officers under certain circumstances.14
Officers of the Delaware State Police are paid salaries, receive benefits and are reimbursed for expenses in accordance with state policy. Sergeant Salter was appointed an officer of the Delaware state Police on August 29, 1986 and currently serves in the Planning Section of the Delaware State Police.
Of course, there was no such entity as the State Police in 1897. But there were sheriffs and other conservators of the peace.15 Did the framers intend that persons holding these positions would be deemed to "hold [an] office under this State"? Does it follow that all modern-day State Troopers, being conservators of the peace, hold "office under the State"?
In 1995 the Justices concluded16 that each member of a board or commission appointed pursuant to Title 23 or 24 of the Delaware Code possesses the essential characteristics of a public officer as that term is used in Article XV, § 5, of the Delaware Constitution, and therefore they could hold...
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