State ex rel. Gebelein v. Killen

• Decision Date: 15 November 1982
• Citation: 454 A.2d 737
• Parties: STATE of Delaware, ex rel., Richard S. GEBELEIN, Attorney General, Plaintiff Below, Appellant and Frank DiMondi, Relator Below, Appellant, v. Ernest E. KILLEN, Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 737

454 A.2d 737

STATE of Delaware, ex rel., Richard S. GEBELEIN, Attorney General, Plaintiff Below, Appellant and Frank DiMondi, Relator Below, Appellant, v. Ernest E. KILLEN, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Nov. 15, 1982. ^*

Decided: Dec. 20, 1982.

On Certification from the Superior Court. Questions Answered.

E. Norman Veasey (argued), William J. Wade and Richard D. Kirk, of Richards, Layton & Finger, Wilmington, for plaintiff and relator, appellants.

Bruce M. Stargatt (argued), and C. Vincent Scheel, of Young, Conaway, Stargatt & Taylor, Wilmington, for defendant, appellee.

Before McNEILLY, QUILLEN, HORSEY and MOORE, JJ., and BROWN, Chancellor, constituting the Court En Banc.

QUILLEN, Justice (for the majority):

I. Stage of Proceedings

This action was commenced by Attorney General Richard S. Gebelein ("Plaintiff"), on the relation of Frank DiMondi ("Relator"), filing an Information in the Nature of Writ of Quo Warranto in the Superior Court. The Superior Court issued a Rule To Show Cause to Ernest E. Killen ("Defendant"), commanding him to respond to the Information. Defendant timely filed a Response to the Information in the Superior Court. The Superior Court certified to this Court two questions of law, and this Court accepted the certified questions. ¹

The Attorney General claims that, by the exercise of the constitutional recess appointment power, the Governor ousted Defendant, Killen, a Commissioner of the Delaware River and Bay Authority, in favor of DiMondi. The defense is that the recess appointment power was not properly used to unseat Mr. Killen because constitutional and statutory holdover provisions protected his right to office against the purported recess appointment. Unfortunately, we deem some preliminary discussion desirable before turning to the two certified questions.

II. Facts

The material facts are simple and not in dispute.

The Delaware River and Bay Authority (the "Authority") is a bistate agency created by a compact between the States of Delaware and New Jersey, 17 Del.C. § 1701, et seq. (the "Delaware-New Jersey Compact"). Delaware members of the Authority are appointed by the Governor with the advice and consent of the Senate, 17 Del.C. § 1711. Defendant Killen was appointed to serve on the Authority and was commissioned on August 9, 1973. Each member of the Authority is appointed for a term of five years or until a successor has been appointed and qualified. See 17 Del.C. §§ 1712-14. The stated term of Defendant's service began on July 1, 1973, and ended July 1, 1978.

Relator DiMondi was nominated on January 10, 1979, by the Governor as successor to Defendant. Relator's nomination was submitted for confirmation to the Senate of the 130th General Assembly. The Senate of the 130th General Assembly neither rejected nor confirmed Relator's nomination. The 130th General Assembly went out of existence on November 5, 1980. ² The 131st General Assembly formally convened on January 13, 1981.

On January 6, 1981, Relator was issued a Commission to serve as an Authority member. Relator's appointment is asserted by the Governor to be a recess appointment pursuant to Article III, § 9 of the Delaware Constitution. Relator's nomination was not submitted for confirmation to the Senate of the 131st General Assembly. The 131st General Assembly went out of existence on November 3, 1982. After his stated term expired in 1978, Defendant continued to hold office as a member of the Authority and he still continues to exercise all powers of that office, asserting his authority to do so under Article XV, § 5 of the Delaware Constitution, the holdover provision, as well as under 17 Del.C. §§ 1713 and 1714.

III. Pertinent Constitutional and Statutory Provisions

The pertinent constitutional and statutory provisions include the following:

(1) Article III, § 9 of the Delaware Constitution in pertinent part:

"He [the Governor] shall have power, unless herein otherwise provided, to appoint, by and with the consent of a majority of all the members elected to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint. He shall have power to fill all vacancies that may happen during the recess of the Senate, in offices to which he may appoint, except in the offices of Chancellor, Chief Justice and Associate Judges, by granting Commissions which shall expire at the end of the next session of the Senate."

(2) Article XV, § 5 of the Delaware Constitution:

"All public officers shall hold their respective offices until their successors shall be duly qualified, except in cases herein otherwise provided."

(3) 17 Del.C. § 1701, article V, and sss 1713, 1714 and 1715:

" § 1701. Article V Commissioners [in pertinent part].

Each Commissioner shall hold office for a term of five years, and until his successor shall have been appointed and qualified .... Any vacancy, however created, shall be filled for the unexpired term only."

" § 1713. Holding over of Commissioners.

Each Commissioner from this State shall continue to hold office after the expiration of the term for which he is appointed and until his respective successor is appointed and qualified; but no period during which any such Commissioner shall hold over shall be deemed to be an extension of his term of office for the purpose of computing the date on which said successor's term expires."

" § 1714. Successors.

After the expiration of the term of each Delaware Commissioner and each succeeding Commissioner thereafter, the Governor shall, by and with the advice and consent of the Senate, appoint a successor, who shall hold office for a term of 5 years or until his successor has been appointed and qualified."

" § 1715. Vacancies.

In the event a vacancy occurs in the office of a Commissioner from this State by death, resignation, removal or otherwise, the Governor shall, by and with the advice and consent of the Senate, appoint a successor, who shall hold office for the unexpired term."

IV. The Recess Appointment Power Generally

It is noted that the constitutional concept of Senatorial consent to gubernatorial appointments was first introduced in the current Constitution, the Constitution of 1897. Our earlier Constitutions--1776, 1792 and 1831--gave the Governor the absolute appointing power without any requirement of Senate confirmation. Given this chronology, it should also be particularly noted that our recess appointment provision appears to be based on the 1787 federal model and traces the federal language almost verbatim. ³ This would suggest, under concepts of statutory construction, that interpretations of the federal constitutional provision, at least those in vogue in 1897, are entitled to great weight. 73 Am.Jur.2d, Statutes, § 334 (1974); Hill v. Moskin Stores, Inc., Del.Super., 159 A.2d 299, 302 (1960), aff'd Del.Supr., 165 A.2d 447 (1960). But a judicial interpretation of a foreign statute, rendered in the foreign forum subsequent to the statute's adoption here, is not entitled to a presumption that the borrowing extended to that subsequent interpretation. Heckman v. Heckman, Del.Supr., 245 A.2d 550, 551 n. 1 (1968). Moreover, with regard to State constitutional provisions and United States Supreme Court precedents, the predecessor to this Court said through Judge Rodney in DuPont v. Green, Del.Supr., 195 A. 273, 275 (1937):

"When, however, the Supreme Court of a State is faced with the final construction of a provision of its own Constitution, it becomes imperative that a critical examination be made of the reasoning of any case which, by analogy, might aid in such construction, and this duty exists regardless of the high standing of the Court in which such other decision is rendered."

Thus, while the apparent origin of the language of the recess appointment power should be noted and federal precedents accorded proper respect, it is clearly our duty to exercise an independent judgment.

Turning to two specifics, we focus on the language of the power of the Governor "to fill all vacancies that may happen during the recess of the Senate." It came to our attention that Mr. Killen's stated term expired July 1, 1978. The General Assembly was in session in 1978 on June 30 and recalled by the mutual call of the presiding officers of both Houses immediately after midnight on July 1. ⁴

While these facts raised the question of whether the vacancy asserted happened during the recess of the Senate or while the Senate was in session, we are satisfied that the moment of origin of the vacancy asserted does not govern the recess power. In this conclusion, we are persuaded by a series of opinions of the corresponding federal provision by various Attorneys General of the United States. Rather, the power extends to a vacancy happening while the Senate is in session and remaining unfilled in a subsequent recess. As United States Attorney General William Wirt wrote in 1823 at 1 Op.Att'y.Gen. 631, 632-34:

"The substantial purpose of the constitution was to keep these offices filled; and powers adequate to this purpose were intended to be conveyed. But if the President shall not have the power to fill a vacancy thus circumstanced, the powers are inadequate to the purpose, and the substance of the constitution will be sacrificed to a dubious construction of its letter. * * *

Looking to the reason of the case, why should not the President have the power to fill it? In reason, it seems to me perfectly immaterial when the vacancy first arose; for, whether it arose during the session of the Senate, or during their recess, it equally requires to be filled. The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the President is called on to act. Is the Senate in session? Then he must make a nomination to that body. Is it in recess? Then the President must fill the vacancy by a temporary commission. * *...