New Castle County Council v. State

• Decision Date: 30 October 1996
• Docket Number: No. 96C-10-045-WTQ,96C-10-045-WTQ
• Citation: 698 A.2d 401
• Parties: NEW CASTLE COUNTY COUNCIL, the elected governing body for New Castle County, Theodore W. Ryan, President of County Council, Richard P. Cecil, a member of County Council, J. Robert Woods, a member of County Council, Penrose Hollins, a member of County Council, Plaintiffs, v. STATE of Delaware, Robert S. Weiner, defendant as interested party, Stephanie L. Hansen, defendant as interested party, Richard L. Abbott, defendant as interested party, Brian J. Lintz, defendant as interested party, Defendants. Civ. A. . Argued:
• Court: Delaware Superior Court

Page 401

698 A.2d 401

NEW CASTLE COUNTY COUNCIL, the elected governing body for New Castle County, Theodore W. Ryan, President of County Council, Richard P. Cecil, a member of County Council, J Robert Woods, a member of County Council, Penrose Hollins, a member of County Council, Plaintiffs, v. STATE of Delaware, Robert S. Weiner, defendant as interested party, Stephanie L. Hansen, defendant as interested party Richard L. Abbott, defendant as interested party, Brian J Lintz, defendant as interested party, Defendants.

Civ. A. No. 96C-10-045-WTQ.

Superior Court of Delaware,

New Castle County.

Argued: Oct. 30, 1996.

Decided: Nov. 1, 1996.

Plaintiffs' Motion for Summary Judgment--DENIED. Defendant's Motion for Summary Judgment--GRANTED. JUDGMENT ENTERED IN FAVOR OF DEFENDANTS.

Collins J. Seitz and Charles J. Durante, Connolly, Bove, Lodge & Hutz, Wilmington, for Plaintiffs.

Malcolm S. Cobin and C. Drue Chichi, Wilmington, Department of Justice, State of Delaware, for Defendant.

QUILLEN, Judge.

This is the Court's decision on plaintiffs' and defendant State of Delaware's Motions for Summary Judgment. ¹ Plaintiffs seek a declaratory judgment from the Court that 70 Del. Laws chapters 568 and 569 unconstitutionally shorten the terms of office of members of the New Castle County Council. For the reasons herein stated, plaintiffs' Motion is DENIED and defendant State of Delaware's Motion is GRANTED.

FACTS

The facts are not in dispute. The plaintiffs are New Castle County Council ("Council"), the elected governing legislative body for New Castle County, Theodore W. Ryan, President of the Council, and Richard C. Cecil, J. Robert Woods, and Penrose Hollins, each a current member of the Council. In addition to the State of Delaware, the plaintiffs have named as individual defendants, for purposes of this declaratory judgment action, Robert S. Weiner, Stephanie L. Hansen, Richard L. Abbott, and Brian J. Lintz, each of whom is a candidate for an office on the Council.

On July 25, 1996, the Governor signed into law House Bills 667 and 666 as amended by Senate and House Amendment 2 (the "Acts"). As enacted, the Bills are found at 70 Del. Laws chapters 568 and 569, respectively. House Bill 667, which became law first and was effective when signed, provides that elected Council members take office on the first Tuesday in November following the general election, instead of the first Tuesday in January following the general election, as was the procedure prior to this amendment of 9 Del. C. § 1141. ² This Act was expressly made "effective for all terms of office that would terminate after the 1996 election." House Bill 667 also provides that, barring "an emergency declared by Governor, the County governing body shall not meet between the general election day and the following Tuesday when the County Council members elected in the 1996 general election shall take office." Thus, under the statute, the newly elected officials are to take office on Tuesday, November 12, 1996. House Bill 667 therefore expressly has the effect of shortening, by approximately eight weeks, the terms of office of the incumbent Council members. The Act does provide, however, that the members whose terms of office are thus shortened will continue to receive "all pay and other benefits" for the eight weeks between the time their successors take office and the previously scheduled end of their Plaintiffs Theodore W. Ryan, Richard C. Cecil, and J. Robert Woods were elected to membership on the Council in 1992. Plaintiff Penrose Hollins was elected to membership in 1994. The four year terms of office of plaintiffs Ryan, Cecil, and Woods were scheduled to end, prior to the enactment of House Bill 667, on January 7, 1997, while plaintiff Hollins' term of office was scheduled to end on January 5, 1999. No individual plaintiff at any time has been charged with misconduct in office. The individual plaintiffs are four of the current seven incumbent members of County Council.

term of office. ³

The defendants include all of the individual candidates for the two formally contested Council seats in the imminent 1996 election. In particular, defendant Stephanie L. Hansen, who defeated plaintiff Ryan in the September 1996 Democratic primary, is a candidate for the countywide position of President of County Council, as is defendant Richard L. Abbott, the victor in the September 1996 Republican primary. In addition, defendant Robert S. Weiner, who defeated plaintiff Cecil in the September 1996 Republican primary, is a candidate for member of County Council for the Second Councilmanic District, as is defendant Brian J. Lintz, the candidate of the Libertarian Party. ⁴ None of these individual defendants have taken a position on the pending Motions, and all are apparently willing to accept the decision of the Court with regard to the merits of the action. ⁵ Thus, the only defendant to appear on the merits of the Motions now pending is the State of Delaware, represented by the Department of Justice.

The second Act involved in the litigation is House Bill 666 as amended by Senate Amendment 1 and House Amendment 2 ("House Bill 666" herein). As noted, it as well became effective law (70 Del. Laws 569) on July 25, 1996. ⁶ House Bill 666 is more complex in detail (covering super majority requirements and reapportionment in particular) but its clear purpose is to enlarge New Castle County Council to thirteen members in the 1998 election, the President's four year (1996-2000) at-large term being preserved and all of the other twelve members to be elected by newly apportioned district voting in 1998, thereby reducing the district councilmanic terms to be elected in 1996 to two years, ending "the first Tuesday in November following the 1998 general election."

Counsel, both in the briefs and at oral argument, discussed the appropriate limits for the Court in any inquiry into legislative motivation. Suffice it to say that the primary purpose of each of the two Bills is patently apparent from the face of each. House Bill 667, as its synopsis expressly states, was designed to eliminate "lame duck sessions of New Castle County Council." House Bill 666 was designed to enlarge New Castle County Council from seven members to thirteen members, thus reducing the number of constituents per member of Council, and to accomplish that objective in 1998. ⁷

Plaintiffs instituted this action seeking a declaratory judgment under 10 Del. C. § 6501 that the Acts unconstitutionally remove them from their office, in contravention of the Delaware Constitution. Defendant State of Delaware filed a Motion to Dismiss, which, by virtue of the submission of matters beyond the pleadings, is converted to a Motion for Summary Judgment under Superior Court Civil Rule 56, as required by Rule 12(b). Defendant's Motion argues that the Acts are constitutional and that the County Council and the Council members in their official capacities lack standing to sue because the State has sovereign immunity and because they are asserting only the personal rights of Council members. Defendant also asserts that, if the Court finds the Acts unconstitutional, the unconstitutional provisions are severable.

DISCUSSION

When considering a motion for summary judgment under Superior Court Civil Rule 56, the Court's function is to examine the record to determine whether genuine issues of material fact exist. Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., Del.Super., 312 A.2d 322, 325 (1973). If, after viewing the record in a light most favorable to the non-moving party, the Court finds there are no genuine issues of material fact, summary judgment is appropriate. Id. The parties agree that the governing facts are not in dispute. This case, therefore, is appropriate for summary judgment and the Court may decide this case as a matter of law.

The Court is not going to spend any time on the intricacies of the law of standing. Suffice it to say it is inconceivable to the Court that these plaintiffs, in their individual capacities, in their capacities as County Council members, and the Council as a corporate body generally authorized by law to sue and specially unanimously authorized by its members to pursue this lawsuit, cannot bring this issue, clearly affected with public interest, into Court. If the Court is wrong in this instinctive judgment and it is absolutely necessary for the four individual plaintiffs to sue in their individual capacities, the Court, on the representations of plaintiffs' counsel at oral argument, deems that amendment accomplished. The plaintiffs have standing. Given the opinion herein, the Court does not reach the severability issue, which the State at oral argument seemed to acknowledge would present great difficulty.

The County and the plaintiff members of County Council claim that House Bills 667 and 666, insofar as they shorten the terms of incumbent New Castle County Council members, constitute an unconstitutional removal from office. The argument as stated in the brief is as follows:

The Delaware constitution permits the removal of an officer who serves a fixed term in only three ways: (1) by the Governor, upon the address of two-thirds of all the members elected to the House of Representatives and the Senate, Art. III, Del. Const. § 13; (2) by impeachment by the House and trial by the Senate, Art. VI, Del. Const. § 2; and (3) by the Governor, upon conviction of misbehavior in office or any infamous crime, Art. XV, Del. Const. § 6. See State ex. rel Craven v. Schorr, Del.Supr., 131 A.2d 158, 166 (1957).

In addition to the Craven case, reliance is placed on State ex rel. Green v. Collison, Del.Super., 197 A. 836, 839, rev'd on other grounds, Del.Supr., 2 A.2d 97 (1938). The Superior Court in Collison applied the principle of expressio unius est exclusio alterius, and held that the constitutional expression of the grounds for removal from public office necessarily excluded any other...