Slawik v. Folsom

• Decision Date: 27 December 1979
• Citation: 410 A.2d 512
• Parties: Melvin A. SLAWIK, Plaintiff Below, Appellant, v. Henry R. FOLSOM, Jr., Mary D. Jornlin, Sherman W. Tribbitt, New Castle County and the State of Delaware, Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 512

410 A.2d 512

Melvin A. SLAWIK, Plaintiff Below, Appellant, v. Henry R. FOLSOM, Jr., Mary D. Jornlin, Sherman W. Tribbitt New Castle County and the State of Delaware Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted April 17, 1979.

Decided Dec. 27, 1979.

Upon appeal from the Superior Court. Reversed.

Sheldon N. Sandler and William J. Wier, Jr., of Bader, Dorsey & Kreshtool, Wilmington, for plaintiff below, appellant.

Carolyn Berger, Asst. Atty. Gen., Wilmington, for defendants below, appellees.

Before HERRMANN, C. J., DUFFY and McNEILLY, JJ.

HERRMANN, Chief Justice:

The question before the Court is whether the plaintiff Melvin A. Slawik, former New Castle County Executive, was lawfully removed from office by former Governor Sherman W. Tribbitt, a defendant herein, under the provisions of Del.Const. Art. XV, § 6, ¹ on the ground that Slawik had been "convicted," within the meaning of that word as used in Art. XV, § 6, of misbehavior in office or of an infamous crime. In this action by Slawik for damages for wrongful removal from office, ² the Superior Court held that Slawik was "convicted" as of the time of his removal and that he was not, therefore, wrongfully removed from office. Thereupon, the Superior Court granted summary judgment for the defendants. Slawik v. Folsom, et al., Del.Super., 389 A.2d 775 (1978). The plaintiff appeals. ³

I.

The plaintiff was elected to the office of New Castle County Executive for a four-year term to expire on January 4, 1977.

On March 9, 1976, the plaintiff was found guilty by a jury in the United States District Court for the District of Delaware of three counts of making false declarations before a grand jury, in violation of 18 U.S.C. § 1623.

Within 48 hours and prior to sentencing, the defendant Sherman W. Tribbitt, acting in his official capacity as Governor of the State, removed the plaintiff from office under the provisions of Art. XV, § 6, effective immediately on March 11, 1976.

Slawik was sentenced by the U.S. District Court on April 21, 1976. Thereafter, he appealed and, on January 3, 1977, the United States Court of Appeals for the Third Circuit, reversed the convictions. U. S. v. Slawik, et al., 3d Cir., 548 F.2d 75 (1977).

II.

The Superior Court held, and the defendants here contend, that the plaintiff was "convicted", within the meaning of that word as used in Art. XV, § 6, by virtue of the jury verdict of guilt alone. The plaintiff contends, on the other hand, that he was not "convicted" within the meaning of Art. XV, § 6, and therefore could not be lawfully removed from office, until the U.S. District Court had finalized the trial process by entering a "final judgment of conviction" by the imposition of sentence.

The law supports the plaintiff's position. Accordingly, we conclude that the removal of the plaintiff from office on March 11, 1976, was invalid when effectuated, but became valid Nunc pro tunc with the imposition of sentence on April 21, 1976. On that date, the plaintiff lost all rights to any salary and benefits of his public office that he may have previously possessed, and the question presented, as to the stage at which a "conviction" is deemed to have occurred, became moot.

The key to the problem is found in the decision of this Court in Fonville v. McLaughlin, Del.Supr., 270 A.2d 529 (1970). In that case, the issue presented was whether or not a candidate for the General Assembly, who had previously been convicted of grand larceny, could avoid the prohibition of Del.Const. Art. II, § 21, ⁴ because his guilty plea had been stricken pursuant to the expungement provision of the Delaware Probation Statute, 11 Del.C. § 4332(i). ⁵ This Court there stated:

"The threshold question is the meaning of the word 'convicted' as used in Del. Const. Art. 2, § 21. We hold that, as used in this constitutional provision creating a disability of citizenship, the word is to be construed in its narrow sense: it consists of more than a verdict or a plea of guilty; it refers to a final judgment of conviction consisting of the adjudication of guilt by plea or verdict followed by the imposition of sentence. See Truchon v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638 (1953); People v. Fabian, 192 N.Y. 443, 85 N.E. 672."

270 A.2d at 530. Moreover, this Court stated in Fonville that, in considering Del.Const. Art. II, § 21, "distinction must be made between a conviction which is a final judgment, and a plea or verdict of guilty which is only an element of a conviction." 270 A.2d at 531.

Fonville, may not be distinguished from the instant case upon the ground that Fonville dealt with Del.Const. Art. II, § 21, which pertains to eligibility for candidacy to public office, whereas the instant case deals with Del.Const. Art. XV, § 6, which pertains to the right to retain public office. The word "convicted" in the two constitutional provisions must be interpreted consistently and harmoniously under basic tenets of constitutional construction; both deal with the same fundamental constitutional purpose. That purpose, which requires the consistent application of these two provisions, was expressed by this Court in State ex rel. Wier v. Peterson, Del.Supr., 369 A.2d 1076 (1976), as follows:

"To fully understand the operation of Art. II, § 21, it is necessary to examine its purpose. In our view, it is essentially a character provision, mandating that all candidates for State office possess high moral qualities. It is not a provision designed to punish an offender. While conviction of an infamous crime does not imply that an offender is incapable of functioning as a respected and productive member of society, it is irreversible evidence that the offender does not possess the requisite character for public office. It is important to emphasize that we are not concerned here with the standard of compassion which should govern daily interpersonal relationships. We deal, rather, with a norm established by our Constitution for those who seek to govern us. Without question, it is a demanding norm."

"Indeed, The principles governing pre-election disqualification appear to be equally applicable to post-election situations. For example, Art. XV § 6, gives the Governor the authority to 'remove from office any public officer convicted of misbehavior in office or of any infamous crime.' Compare also, Art. VI, § 2, which provides for impeachment and removal from office of 'civil officers' . . . for treason, bribery or any high crime or misdemeanor in office." (emphasis supplied)

369 A.2d 1080-1081.

We hold, therefore, that as used in the Art. XV, § 6, just as in Art. II, § 21, each of which creates a disability to hold public office, the word "convicted" is to be construed as meaning "judgment of conviction" consisting of a determination of guilt by plea or verdict followed by the imposition of sentence. This conclusion is supported by the 1897 Constitutional Debates and the rule generally prevailing elsewhere relative to the establishment of a disability to hold public office.

In the Debates relating to Art. XV, § 6, there are several references to the proposition that the word "convicted" means "convicted by a court" so that a public official subject to removal may be assured of his or her "day in Court". See State v. Collison, Del.Super., 197 A. 836, 842-4 (1938). An accused's "day in Court" in a jury trial on a criminal charge does not end with the guilty verdict of the jury. It ends only when the entire trial process has been completed, including: (1) the opportunity of the Trial Judge to correct any error in the trial, either Sua sponte or upon appropriate motion; and (2) the imposition of sentence. Then, and only then, there exists a judgment of conviction capable of being appealed to a higher Court. A criminal case is not complete and is not disposed of until sentence has been pronounced. Any stage of the trial short of the imposition of sentence is interlocutory and interim only, and does not amount to one's "day in Court" in the full constitutional sense of those words, particularly when a disability of citizenship is the consequence of the conviction.

The conclusion reached here is supported by the authorities in other jurisdictions that have dealt with the precise issue now before this Court. For example, in Commonwealth ex rel. McClenachan v. Reading, Pa.Supr., 336 Pa. 165, 6 A.2d 776, 777-8 (1939), the Supreme Court of Pennsylvania, in reviewing proceedings that sought the ouster of several public officials who had been found guilty of federal crimes, ⁶ stated:

"As used in Article II, section 7 of the Constitution . . . the word 'convicted' can mean only a final judgment of sentence and not merely a verdict of guilty rendered by a jury. This meaning of the word 'convicted' has been repeatedly applied by this court. In the early case of Smith v. Commonwealth, 14 Serg. & R. 69, 70, it was said: 'When the law speaks of conviction, it means a judgment, and not merely a verdict, which in common parlance, is called a conviction.' In Shields v. Westmoreland County, 253 Pa. 271, 98 A. 572, where this court was called upon to construe the identical section of the Constitution here in question, we said that the return of guilty by the jury was not a conviction in the legal sense of the term, but that a final judgment on the verdict was necessary. In interpreting a statute using the word 'conviction' the court has held that the strict legal meaning must be applied except where the intention of the legislature is obviously to the contrary: Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565, L.R.A. 1916B, 950".

"Until they have been convicted as evidenced by a final judgment they cannot be deprived of the right to hold the offices to which they were appointed."

In People v. Fabian, N.Y.Ct.App., 192 N.Y. 443, 85 N.E. 672, 675 (1908), the Court, confronted with a statute that prevented any person "convicted of a felony" from registering to vote...