Slawik v. Folsom

• Decision Date: 21 June 1978
• Citation: 389 A.2d 775
• Parties: Melvin A. SLAWIK, Plaintiff, v. Henry R. FOLSOM et al., Defendants.
• Court: Delaware Superior Court

Page 775

389 A.2d 775

Melvin A. SLAWIK, Plaintiff, v. Henry R. FOLSOM et al., Defendants.

Superior Court of Delaware, New Castle County.

Submitted May 5, 1978.

Decided June 21, 1978.

Sheldon N. Sandler, of Bader, Dorsey & Kreshtool, Wilmington, for plaintiff.

Carolyn Berger, Dept. of Justice, of the State of Delaware, for defendants Tribbitt and the State of Delaware.

Catherine S. Mulholland, County Law Dept. of New Castle County and Howard M. Berg, Wilmington, for defendants Folsom, Jornlin and New Castle County.

OPINION

WRIGHT, Judge.

This case is before the Court on a motion to dismiss filed by defendants, Sherman Tribbitt ("Tribbitt") and the State of Delaware ("State") and on a motion for summary judgment filed by Defendants, New Castle County ("County"), Henry R. Folsom ("Folsom") and Mary Jornlin ("Jornlin"). Plaintiff Melvin Slawik ("Slawik") has also filed a motion for summary judgment.

In this suit, Slawik seeks to recover damages for his alleged wrongful removal from the office of County Executive. While there are no material facts in dispute, a review of the facts is necessary in order to understand the positions of the various Defendants. Slawik was elected in November, 1972, to serve as County Executive for New Castle County from January, 1973, until January, 1977. However, on March 9, 1976, he was found guilty after a jury trial in the United States District Court for the District of Delaware of three counts of making false declarations to a grand jury in violation of 18 U.S.C. Section 1623. On March 11, 1976, Tribbitt, acting in his official capacity as governor of the State of Delaware, removed Slawik from office pursuant to Article XV, Section 6 of the Delaware Constitution of 1897 which states:

"All public officials shall hold their offices on the condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime."

Once Slawik was removed from office, Folsom, who had previously been elected County Council President, succeeded to the office of County Executive pursuant to the provisions of 9 Del.C. Section 1114. Folsom served until the first Tuesday following the general election in November, 1976, when Jornlin took over because of her election to that office.

Slawik, after being sentenced on April 21, 1976, appealed to the United States Court of Appeals for the Third Circuit and, on January 3, 1977, that Court reversed the decision of the District Court.

The threshold question that must be resolved is whether Slawik was properly removed. Slawik argues that the provisions of Article XV, Section 6 of the Delaware Constitution were improperly applied because he had not been convicted at the time of his removal. He feels that a public official cannot be considered to have been convicted of a crime until, at the very least, that official has been sentenced. Ideally, Slawik would have this Court rule that a conviction does not occur until all appeal possibilities have been exhausted. The Defendants argue that Slawik's removal was proper. Since there are no material facts in dispute and since a question of law is presented, this Court can enter a judgment based on the record before it.

The term "convicted" is given a meaning that conforms to the context in which it is being used. As Judge (now Chief Justice) Herrmann said in Martin v. State, Del.Super., 116 A.2d 685 (1955):

"The word 'convicted' is ambiguous; it is a Verbum aequivocum. (citation omitted). The meaning of the word usually varies with the context of the statute in which it is used. (citation omitted). In its technical legal sense, the word includes the status of being guilty of, and sentenced for, a criminal offense, whether that status is established after confession of guilt by a guilty plea or after decision of a tribunal upon an assertion of innocence. (citations omitted). In common parlance, however, a person has been 'convicted' when he has asserted his innocence and has been found guilty by a jury or a court. (citations omitted). In the American College Dictionary the word 'convict' is defined: ' "To prove or declare guilty of an offense, after a legal trial.' "

In the present case, Slawik was removed from office after a verdict of guilty was rendered by the jury but before he was sentenced. The question is whether that verdict is sufficient to constitute a conviction. Public policy indicates that where an...