Constitutional Curveballs

The challenges of deciphering a 118-year-old governing document.

Illustration by TOM LABAFF

The state constitution got a workout over the past year. So did a small army of lawyers in the governor’s office. They had to wrestle with it. The constitution is 118 years old, the fourth one Delaware has had. There actually was a new one ready to go in 1973, but the secretary of state bumbled the legal requirements for advertising it, and it died of a technicality. So it was the Constitution of 1897, adopted at a time when women could not vote, when segregation was the law of the land, when it was too soon to know if those automobile contraptions would catch on, that served as the word when constitutional conundrums arose in recent months. That constitution can still throw a curveball. “It is both a dream and a challenge,” says Andy Lippstone, who is the counsel to Jack Markell, the Democratic governor. “It’s always gratifying as a lawyer to be doing important work regarding the constitution.” The constitution had its way with the lieutenant governor, judicial vacancies that managed to rope in all three branches of government and a disputed election for a Kent County office. Not that this constitution is unknown for its quirkiness.

Like Donald Rumsfeld, the defense secretary who had his hierarchy of known knowns, known unknowns and unknown unknowns, the constitution has always had its known quirks. If anybody knows the constitution, it is Randy Holland, a state Supreme Court justice. He is a scholar of all 50 state constitutions and wrote a law-school textbook about Delaware’s. As he observed there, “Each state defines itself as a sovereign through the structure of government set forth in its own constitution.” Because of the constitution, Delaware goes beyond being the first state to sometimes being the only state. As Holland notes, the constitution does it three times. It makes Delaware the only state where the judiciary is required to be politically balanced between the Democrats and the Republicans. Also the only state where the legislature alone has the authority to amend the constitution without requiring the governor’s signature or any input from the voters. Also the only state where there is no such thing as initiative or referendum, a mode of direct lawmaking that puts legislation on the ballot for voters’ approval.

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This has led the Initiative & Referendum Institute at the University of Southern California to snipe on its website, “Delaware allows less popular participation in lawmaking than any other state.” Never mind. There is always Twitter. Now to the unknown quirks. Maybe not to Justice Holland, but unknown enough to have the lawyers in the governor’s office parsing the constitution. Jack Markell is a governor who has lawyered up. Not only does he have Andy Lippstone as his counsel, and not only does he have Danielle Blount as deputy counsel, but he has Mike Barlow, his chief of staff who is a lawyer, and Drew Fennell, his deputy chief of staff who is also a lawyer. It was up to them to turn unknown quirks into known quirks. Take the case of the lieutenant governor. Delaware lost the one it had when Matt Denn left mid-term after he was elected as the Democratic attorney general last year. The constitution did not care. It was so indifferent to the office of lieutenant governor that it did not provide a way to get a replacement. Other offices are replenished by special election or appointment or a line of succession, but not the lieutenant governor.

There will not be a new one until the voters elect someone in 2016. This is the sort of thing that had the lawyers checking beyond the constitution itself to the record of the Constitutional Convention from 1897. It showed the delegates meant to do what they did. As William C. Spruance, a leading delegate, said dismissively, “I do not see that there is a particle of necessity for the election of a lieutenant governor in case of the office becoming vacant.” Without Denn as the lieutenant governor, the gubernatorial line of succession runs from the governor to the secretary of state to the attorney general (so Denn simply dropped down two places, like Prince Harry) to the president pro tem of the state Senate to the speaker of the state House of Representatives. The constitution has spoken. The constitution set off another round of legal rumblings that lasted for months over judicial vacancies. When a judge decides to leave the bench, what happens next is not exactly as simple as getting two weeks’ notice. The constitution gives the governor 60 days to nominate a new judge for Senate confirmation. If the legislature is not in session, then the governor has to call in the senators for a special session. “We spend a lot of time counting days and weeks,” Lippstone says. So it went when Carolyn Berger, a Supreme Court justice, stalked off the court after she was passed over for chief justice. Berger obviously knew her constitution. The timing of her departure created constitutional mischief for the governor and the senators.

The legislature meets from January through June. Berger left Sept 1, 2014. It forced the senators to return for a special session in the heat of the campaign season. When her replacement turned out to be Jim Vaughn Jr., who moved up from president judge of the Superior Court, it meant there had to be a new president judge, and guess what? “The timing of that required a special session around the holidays, thereby ensuring that no state senator put me on their Christmas card list,” Lippstone quips. Then there was the election last year for the Kent County recorder of deeds, the office that keeps track of property records. When the votes were all in for Betty Lou McKenna, the sitting Democratic officeholder, and Lamar Gunn, the Republican candidate, it came out a tie. No kidding. It was 19,248 to 19,248. The lawyers were sent for. In the event of a tie, state law says the office is declared vacant. In the event of a vacancy, the constitution says the governor appoints someone to fill it. Markell put McKenna back in office. Not that it did not take some sorting out. “This was not as easy as it looked,” Lippstone says. From the lieutenant governor to the judicial vacancies to the tie vote, what happened might not have been pretty, but it was constitutional. As Donald Rumsfeld himself could have said, you do the legal work with the constitution you have, not the one you might want to have.

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