Jump to Content Jump to Main Navigation

Login

Forgotten your password?

The Delaware State Constitution, 2nd Edition by Holland, Randy J (10th January 2017)

Part Two The Delaware Constitution and Commentary, Art.III Executive

From: The Delaware State Constitution (2nd Edition)

Randy J. Holland

(p. 131) Article III  Executive

Section 1  Governor to be Supreme Executive.

The supreme executive powers of the State shall be vested in a Governor.

Section 1, which first appeared in Article III, Section 1 of the 1792 Constitution, establishes that the Governor shall exercise executive powers. The language of Section 1 has been carried over verbatim to Article III, Section 1 of the 1831 and 1897 Constitutions. Drafters of the 1897 Constitution adopted the provision with little debate.

Delaware’s chief executive originally had only nominal powers as compared to the General Assembly. Mindful of colonial experiences with the British Crown, the Delaware Constitution of 1776 established a weak President (Governor) to exercise executive powers of government. The President (Governor) was selected by a vote of both Houses of the General Assembly and exercised many of his powers in conjunction with a Privy Council selected by the General Assembly. Subsequent Delaware constitutions have recognized the need for a stronger executive, and therefore, significantly enhanced the power of the executive branch.

Like the United States Constitution, Delaware’s current Constitution distributes the sovereign powers of government between three separate branches. The supreme executive power of the state is vested in the Governor, whose duty is to (p. 132) faithfully execute and administer the laws. Pursuant to this section, the Governor is vested with the power to take reasonable steps to protect state property.

Under the doctrine of separation of powers, the Delaware Supreme Court has declared certain statutory enactments unconstitutional because the statutes delegated executive powers to another branch of government.1 In determining whether the General Assembly has improperly delegated executive power to another branch of government, the Court considered: first, whether the delegated power is predominantly executive or legislative or a blend of the two; second, the degree of control exercised by the other branch of government over the exercise of an executive power; and third, the nature and purpose of the statute in delegating the executive function to a different branch.2

Section 2  Election of Governor.

The Governor shall be chosen by the qualified electors of the State, once in every four years, at the general election.

Under the Constitution of 1776, the General Assembly elected the state’s Chief Executive. The drafters of the 1792 Constitution intended to strengthen the independent power of the executive by providing that the Governor be elected by a vote of the populace. Section 2 was adopted as part of the 1897 Constitution without debate and has not been subject to judicial interpretation.

Section 3  Election Returns, Publications; Election by General Assembly.

The returns of every election for Governor shall be sealed up and immediately transmitted to the President of the Senate, or in case of a vacancy in the office of President of the Senate, or his or her absence from the State to the Secretary of State, who shall keep the same until a President of the Senate shall be chosen, to whom they shall be immediately transmitted after his or her election, who shall open and publish the same in the presence of the members of both Houses of the General Assembly. Duplicates of the said returns shall also be immediately lodged with the Prothonotary of each county. The person having the highest number of votes shall be Governor; but if two or more shall be equal in the highest number of votes, the members of the two Houses shall, by joint ballot, choose one of them to be Governor; and if, upon such ballot, two or more of them shall still be equal and highest in votes, the President of the Senate shall have the casting vote.

Section 3 is based on a similar provision, Article III, Section 2, in the 1792 Constitution, which was repeated in the 1831 Constitution. This section sets (p. 133) forth detailed procedures for transmitting and accounting for election returns and determining the winner of a gubernatorial election. If the electorate casts equal votes for a candidate, the General Assembly elects the Governor. If the two Houses of the General Assembly cast equal votes, the President of the Senate casts the decisive vote.

Section 4  Contested Elections of Governor or Lieutenant-Governor.

Contested elections of the Governor or Lieutenant-Governor shall be determined by a joint committee, consisting of one-third of all the members elected to each House of the General Assembly, to be selected by ballot of the Houses respectively. Every member of the committee shall take an oath or affirmation that in determining the said election he or she will faithfully discharge the trust reposed in him or her; and the committee shall always sit with open doors.

The Chief Justice, or, in case of his or her absence or disability, the Chancellor shall preside at the trial of any contested election of Governor or Lieutenant-Governor, and shall decide questions regarding the admissibility of evidence, and shall, upon request of the committee, pronounce his or her opinion upon other questions of law involved in the trial.

The first paragraph is similar to Article III, Section 2, Paragraph 3 of the 1792 Constitution and Article III, Section 2, Paragraph 2 of the 1831 Constitution. Section 4 describes the selection of a joint committee that determines contested elections of the Governor or Lieutenant Governor. This paragraph was adopted without legislative debate and has not been subject to judicial interpretation.

The second paragraph, new in the 1897 Constitution, designates the Chief Justice of the Delaware Supreme Court as the presiding judge for trials of contested elections and permits the Chief Justice to answer questions regarding the admission of evidence and other questions of law. Delegates to the 1897 Convention debated whether it was appropriate for the Chief Justice to determine questions of evidence and other questions of law. Ultimately, the Chief Justice was determined to be the most qualified to answer legal questions. With respect to all other types of questions, however, the committee retains decision-making power.

Section 5  Term of Office.

The Governor shall hold his or her office during four years from the third Tuesday in January next ensuing his or her election; and shall not be elected a third time to said office.

Section 5, new in 1897, expanded the power of the Governor by providing for a four-year term and permitting the Governor to be elected for two terms. Before 1897, Delaware’s constitutions required a shorter term of service or a lower (p. 134) number of terms. Article VII of the 1776 Constitution permitted the President (Governor) to hold office for three years and allowed for additional terms only after three years had expired since last holding the office. The 1792 Constitution in Article III, Section 3 provided a similar term and limitation on service. Article III, Section 3 of the 1831 Constitution permitted the Governor to serve only a single four-year term.

Delegates to the Constitutional Convention of 1897 replaced the word “eligible” with “elected” in the draft of the 1897 Constitution to clarify that the Governor could not be elected to office a third time. The Governor could, however, hold office longer than two terms. For example, the Governor may temporarily hold the office due to the line of succession if the Governor rose to the office from that of Lieutenant Governor, Secretary of State, Attorney General, or as a presiding officer in one of the Houses of the General Assembly. Section 5 has not been subject to judicial interpretation.

Section 6  Qualifications.

The Governor shall be at least thirty years of age, and have been a citizen and inhabitant of the United States twelve years next before the day of his or her election, and the last six years of that term an inhabitant of this State, unless he or she shall have been absent on public business of the United States or of this State.

Section 6 is substantially identical to Article III, Section 4 of the 1792 and 1831 Constitutions. This provision was adopted with little debate in 1897. The Delaware Supreme Court has held that this section sets forth the exclusive qualifications required for the office of Governor.3

Section 7  Compensation.

The Governor shall, at stated times, receive for his or her services an adequate salary to be fixed by law, which shall be neither increased nor diminished during the period for which he or she shall have been elected.

The language of Section 7 is substantially identical to Article III, Section 6 of the 1792 and 1831 Constitutions. Article VII of the 1776 Constitution permitted the President (Governor) to receive an “adequate, but moderate salary” and did not explicitly prohibit a change in the Governor’s compensation. The Constitution of 1792 introduced the restriction on the General Assembly’s ability to change the Governor’s compensation during his or her term of service. The Delaware Supreme Court has applied this principle and declared a cost of living (p. 135) adjustment statute unconstitutional so far as it permitted an upward increase in salary during the incumbent’s term of office.4 This section likewise prohibits a decrease in an incumbent’s compensation.

Section 8  Governor as Commander-In-Chief of State Armed Forces.

He or she shall be commander-in-chief of the army and navy of this State, and of the militia, except when they shall be called into the service of the United States.

A provision for the executive to serve as commander of the State’s military forces first appeared in Article IX of the 1776 Constitution. Section 8 is identical to Article III, Section 7 of the Constitutions of 1792 and 1831. The section was adopted without debate in 1897 and has not been subject to judicial interpretation.

Section 9  Appointing Power; Recess Appointments; Confirmation.

He or she 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 or she is or may be authorized by this Constitution or by law to appoint. He or she shall have power to fill all vacancies that may happen during the recess of the Senate, in offices to which he or she may appoint, except in the offices of Chancellor, Chief Justice and Judges, by granting Commissions which shall expire at the end of the next session of the Senate.

He or she shall have power to fill all vacancies that may happen in elective offices, except in the offices of Lieutenant-Governor and members of the General Assembly, by granting Commissions which shall expire when their successors shall be duly qualified.

In case of vacancy in an elective office, except as aforesaid, a person shall be chosen to said office for the full term at the next general election, unless the vacancy shall happen within two months next before such election, in which case the election for said office shall be held at the second succeeding general election.

Unless herein otherwise provided, confirmation by the Senate of officers appointed by the Governor shall be required only where the salary, fees and emoluments of office shall exceed the sum of fifteen hundred dollars annually.

Section 9 introduced a new framework for the Governor’s appointment powers. Prior Delaware constitutions established different arrangements for appointing state and county officers. The 1776 Constitution in Articles XII and XVI permitted the President (Governor) and the General Assembly by joint ballot to appoint judicial and executive officers. Article III, Section 8 of the (p. 136) Constitutions of 1792 and 1831 gave the Governor the power to appoint all officers established by the Constitution or by law, and did not require confirmation by the Senate.

In Delaware, Senate consent to gubernatorial appointments appeared for the first time in the 1897 Constitution, and consequently this section was subject to significant debate during the 1897 Constitutional Convention. Delegates discussed whether confirmation by the Senate should require more than a majority vote. Eventually, the delegates settled on only a majority vote for confirmation of appointments unless otherwise provided by the Constitution. Section 9 does not provide a judicial remedy for senatorial inaction on nominations submitted by the Governor.

Under the 1897 Constitution, the Governor’s appointment powers apply to offices authorized by the Delaware Constitution or law. Nominees who would receive more than five hundred dollars in compensation are subject to confirmation by the Senate. Section 9 was amended in 2011 to increase the annual amount of compensation an officer must receive, from such position, before Senate confirmation is required. The 2011 Amendment increased the compensation amount of five hundred dollars, which was the amount in existence since 1897, to fifteen hundred dollars.5 If a vacancy occurs during the recess of the Senate, the Governor may temporarily appoint officers to fill the vacancy. These appointments expire at the next session of the Senate. If a vacancy happens in an elective office, the Governor may grant a commission that expires when the successor becomes qualified. At the next general election, a person is chosen to the office for the full term, unless the vacancy occurs within two months before the general election. In that case, the election for the office will be held at the second succeeding general election.

Delegates to the 1897 Convention debated whether the person chosen at the next general election would serve the full term or only for the unexpired portion of the term. A full term was settled on to encourage candidates to fill the vacancy. Because compensation was not very high and organizing a campaign required a certain amount of resources, the delegates decided to provide the longest term possible.

The power of appointment is not inherently an executive function, and the Delaware Constitution may alter or remove this power from the executive. The Governor’s power to make appointments is a grant rather than a limitation on an inherent power of the Governor. The express terms of Section 9 provide that the Governor has the power to appoint officers authorized by “this Constitution or by law.” Accordingly, the Governor must rely on an express or implied constitutional or statutory authority as the basis for the right to appoint.

With respect to statutory offices, the General Assembly may grant, withhold, or change the Governor’s power to appoint. Judicial decisions have recognized (p. 137) the General Assembly’s authority to enact legislation that not only creates commissions or boards but also names the members serving on the board. In addition, the General Assembly may authorize the agency or board to make certain appointments. The General Assembly may not, however, delegate the power of appointment to nongovernmental entities. In State ex rel. James v. Schorr,6 the Delaware Supreme Court declared unconstitutional a statute that permitted political parties to nominate members of an agency. The basis for the Court’s holding was that political parties are voluntary organizations of individuals, are accountable to no one except the organization, and have no connection with the three branches of government in which the sovereign power of government is vested by the Delaware Constitution.7

The Governor’s special grant of power to fill vacancies in elective offices has also been interpreted by Delaware’s courts. The Delaware Supreme Court has held that “the Governor’s authority to fill elective-office vacancies is a minor power intended only as a temporary measure to ensure that the government is efficient and is only effective until the people can speak their will again.” Specific phrases and terms contained in Section 9 have been construed by applying that principle. The term “vacancy” has been held to mean that “the office is unoccupied and without an incumbent, who has a legal right to continue therein until the happening of some future event.”8 In construing the phrase “next general election,” it has been held that the successor would be chosen at the next general state election, even though it is not the next general election at which the office would ordinarily be filled under the statute.9 The words “for the full term” have been interpreted to mean that the successor serves the full statutory term, notwithstanding that the unexpired vacancy was for less than a full term.10

The postponement of electing a successor until the second general election when the vacancy occurs within two months of the next general election has also been subject to judicial construction. The Delaware Supreme Court construed this constitutional provision in the context of two classes of vacancies.11 One class of cases included vacancies during the first two years of four-year terms. The other class of cases was composed of vacancies during two-year terms and vacancies at the end of four-year terms. In the first class of cases, the Governor’s appointee fills the vacancy until the second succeeding general election because the people have not anticipated the vacancy and the political parties do not have a sufficient amount of time to select candidates to fill the vacancies. For (p. 138) the second class of cases, the people have expected the vacancy, and therefore, “the second succeeding general election” provision in Section 9 does not apply to vacancies in two-year terms or vacancies two months prior to a general election at the end of the four-year term, because by law a successor would have been elected for the office anyway.

The Delaware judiciary has issued several opinions regarding the Governor’s recess appointment power. The recess appointment provision in the Delaware Constitution is almost identical to a corresponding provision in Article II, Section 2 of the United States Constitution. The purpose of the Recess Clause is to prevent an interregnum, or period of vacancy between the expiration of one term and the beginning of another. Because the clause is a specific exception to the constitutional norm for appointment with approval by the Senate, the Delaware Supreme Court has adopted a strict interpretation of the recess appointment power.12

The Delaware Constitution provides two means of filling a vacant office. The first, Section 5 of Article XV, provides for the automated extension of an incumbent’s term until a successor is qualified. The second, Section 9 of Article III, is used only when the first provision fails. A prerequisite to the Governor’s power under Section 9 of Article III is a “vacancy.” When there is no official to hold over and the Senate is in recess, the Governor has the exceptional authority to act alone to ensure that public duties are discharged by granting a temporary commission for an individual to act until the Senate has an opportunity to consent.

Disputes have arisen between the executive and legislative branches regarding the relationship between Article III, Section 9, which permits a recess appointee to hold office until the next meeting of the Senate, and the holdover provision contained in Article XV, Section 5, which allows public officers in appointive positions the right to hold office until their successors duly qualify. In State ex rel. Gebelein v. Killen,13 the Delaware Supreme Court held that the term of a recess appointment expires at the end of the next session of the Senate and the office becomes constructively vacant because the recess appointee no longer has legal authority to remain in office. In contrast, a holdover appointee may lawfully continue to occupy office after the expiration of the term until a successor is qualified and replaces the holdover appointee. Justices of the Peace are not considered “constitutional judges” for vacancy purposes but rather are classified as “public officers” serving fixed terms. Consequently, a Justice of the Peace holds over after the expiration of a fixed term of office in accordance with Section 5 of Article XV.

(p. 139) Section 10  Secretary of State; Appointment, Term, Duties and Compensation.

The Governor shall appoint, by and with the consent of a majority of all the members elected to the Senate, a Secretary of State, who shall hold office during the pleasure of the Governor. He or she shall keep a fair register of all the official acts and proceedings of the Governor, and shall, when required by either House of the General Assembly lay the same, and all papers, minutes and vouchers, relative thereto, before such House, and shall perform such other duties as shall be enjoined upon him or her by law. He or she shall have a compensation for his or her service to be fixed by law. The Secretary of State shall become a bona fide resident of the State within six months after his or her appointment; provided, however, that upon good cause shown, the Governor may grant an additional extension of six months. After becoming a resident of the State, the Secretary shall continuously be a resident of the State as long as he or she retains office. Failure to obtain or retain such residency shall be an automatic resignation from office.

The office of Secretary of State originally appeared in Article III, Section 15 of the 1792 Constitution. Both the 1792 and 1831 Constitutions required the Governor to appoint a Secretary of State, but did not require confirmation by the Senate. Drafters of the 1897 Constitution provided for confirmation by the Senate because the Secretary is third in succession to the office of Governor and performs other important functions, including serving on the Board of Pardons. The last few sentences of this section, establishing a residency requirement for the Secretary of State, were added by amendment in 2001.

Section 11  County Officers; Qualifications; Members of Congress, Federal Employees and Other Officers Holding Dual Office.

No person shall be elected or appointed to an office within a county who shall not have a right to vote for a Representative in the General Assembly, and have been a resident therein one year next before his or her election or appointment, nor hold the office longer than he or she continues to reside in the county, unless herein otherwise provided.

No member of Congress, nor any person holding or exercising any office under the United States, except officers usually appointed by the courts of justice respectively and attorneys-at-law, shall at the same time hold or exercise any office of profit under this State, unless herein otherwise provided.

No person shall hold more than one of the following offices at the same time, to-wit: Secretary of State, Attorney-General, Insurance Commissioner, State Treasurer, Auditor of Accounts, Prothonotary, Clerk of the Peace, Register of Wills, Recorder, or Sheriff.

The first paragraph of Section 11 is similar to Article III, Section 8 of the 1792 and 1831 Constitutions. This paragraph requires executive branch office holders (p. 140) to fulfill certain voting and citizenship requirements. Delegates to the 1897 Convention debated whether to add “or by law” to the end of the first paragraph. The debate centered on whether the General Assembly could permit citizens who could not vote at that time, such as women or minors, to hold the offices of Notary Public, Commissioner of Deeds, or other types of offices. Ultimately, it was decided not to permit the General Assembly to change by statute the qualifications. The Delaware Supreme Court has held that Section 11 is not a limitation on the power of the General Assembly to prescribe other qualifications that are not inconsistent with those specified in the Constitution.14

The first paragraph of Article III, Section 11 applies to county officers who are appointed by the Governor. Because the General Assembly has vested the County Executive of New Castle County with the authority to appoint the Chief of Police of New Castle County and the Public Safety Director of New Castle County, the one-year durational residency requirement does not apply to those positions.15

The second paragraph prohibits federal representatives and officers from holding state offices. It is based on similar language in Article III, Section 5 of the 1792 and 1831 Constitutions. The justices of the Delaware Supreme Court have opined that the phrase “office under the United States” does not preclude an incumbent Governor from accepting an appointment to the Amtrak Board of Directors.16 The second paragraph does not preclude the Governor from accepting appointment to the Federal Secretary of Education’s National Assessment Governing Board. The National Assessment Governing Board is not considered to be an “office under the United States.”17

The third paragraph forbids certain public officials from holding more than one office. Section 8 of Article III of the 1792 and 1831 Constitutions also contained language prohibiting the simultaneous holding of specific offices. This paragraph has not been subject to judicial interpretation.

Section 12  Commissions.

All Commissions shall be in the name of the State, and shall be sealed with the great seal and signed by the Governor.

Although the exact language for Section 12 first appeared in the 1897 Constitution, the 1776 Constitution contained similar language concerning commissions in Article XX. Section 12 was adopted without legislative debate in 1897. It has not been subject to judicial interpretation.

(p. 141) Section 13  Removal of Officers by Governor; Procedure.

The Governor may for any reasonable cause remove any officer, except the Lieutenant-Governor and members of the General Assembly, upon the address of two-thirds of all the members elected to each House of the General Assembly. Whenever the General Assembly shall so address the Governor, the cause of removal shall be entered on the journals of each House. The person against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied with the cause alleged for his or her removal, at least ten days before the day on which either House of the General Assembly shall act thereon.

Section 13 first appeared in the 1897 Constitution. Prior Delaware constitutions did not provide for the removal of officers by the Governor. Delegates to the 1897 Convention decided that removal by a bill of address pursuant to this section requires only one notice to be given to the person subject to removal. The delegates also debated whether to reduce the notice period from ten to five days. This amendment was withdrawn because of a concern to provide ample time for a person to prepare for a defense.

The concept of removing public officials through a bill of address to the executive by the legislature was contemplated by the framers of the United States Constitution at the Philadelphia Convention and rejected. John Dickinson of Delaware proposed that public officials be removable by “the Executive on the application [by] the Senate and House of Representatives.” Dickinson’s motion was opposed and defeated as being inconsistent with an independent judiciary.

Even though the United States Constitution has never provided for a bill of address to the executive, address has been authorized since 1776 as a means of removing public officials at one time or another in a majority of state constitutions. Address requires both Houses of the General Assembly to make a formal request to the Governor for a public officer’s immediate removal from office. A public official may be removed by the process of address even though his or her conduct does not constitute an impeachable offense. Upon address by two-thirds of all members elected to each House, the Governor can remove the officer for reasonable cause.

The 1897 Constitution establishes three general methods for removing a public officer. The first method is described in this section, whereby the Governor can remove an officer for reasonable cause upon address by two-thirds of all members elected to each House. Second, Article VI provides an officer can be removed by impeachment by the House and trial by the Senate. Third, Article XV, Section 6 provides an officer can be removed by the Governor upon conviction of misbehavior in office or infamous crime. Judicial officers can also be removed by the Delaware Court on the Judiciary pursuant to Article IV, Section 37.

(p. 142) Delaware’s judiciary has interpreted these constitutional provisions. A majority of the Delaware Supreme Court in State ex rel. Green v. Collison 18 explained that:

[C]‌ertain causes of removal and certain methods of removal were provided as the sole causes and the sole methods. Removal by impeachment if for cause. Removal upon the address of the General Assembly is predicated on cause. Conviction of misbehavior in office or of infamous crime is cause. Every provision in the organic law with respect to removal from office points straight at cause, and nothing except cause.19

Accordingly, each of the constitutional provisions for removal requires proof of cause. Nevertheless, without a showing of cause, the General Assembly may abolish or modify the entire office. Thus, statutes that eliminated the lame duck session of the New Castle County Council and increased the number of council districts did not unconstitutionally remove sitting council members from office.

Section 14  Reports from Executive Departments.

The Governor may require information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices.

Section 14 is similar to Article III, Section 10 of the 1792 and 1831 Constitutions. This provision was adopted without legislative debate. It has not been subject to judicial interpretation.

Section 15  Messages to General Assembly.

He or she shall, from time to time, give to the General Assembly information of affairs concerning the State and recommend to its consideration such measures as he or she shall judge expedient.

Section 15 requires the Governor to provide the General Assembly with a “State of the State.” Typically, the Governor fulfills this requirement through a joint address to the General Assembly. The language for Section 15 first appeared in Article III, Section 11 of the 1792 Constitution and was retained in the Constitution of 1831. Delegates to the 1897 Convention did not debate the adoption of this provision. The judiciary has not interpreted the meaning or application of this section.

(p. 143) Section 16  Special Sessions of General Assembly; Adjournment; Special Session of Senate.

He or she may on extraordinary occasions convene the General Assembly by proclamation; and in case of disagreement between the two Houses with respect to the time of adjournment, adjourn them to such time as he or she shall think proper, not exceeding three months. He or she shall have the power to convene the Senate in extraordinary session by proclamation, for the transaction of executive business.

The power of the Governor to request a special session of the General Assembly first appeared in Article III, Section 12 of the 1792 Constitution and carried over into the same section in the 1831 Constitution. Delaware’s first Constitution prohibited the President (Governor) from proroguing, adjourning, or dissolving the General Assembly. The President (Governor) could, however, with the advice of the Privy Council or by application of a majority of either House, call a meeting of the General Assembly before they adjourned.

The first sentence of Section 16 refers to the summoning of a special session of both Houses of the General Assembly. Delegates to the 1897 Convention added the phrase “by proclamation” to clarify the method by which the Governor could convene the General Assembly. Proclamations were viewed as preferable to requiring the executive to address each member of the legislature before holding a special session. The Governor is only required to issue one form of communication to request a special session.

The second sentence of Section 16 is new to the 1897 Constitution. This provision requires the Governor to convene only the Senate for a special session to transact executive business, e.g., acting on gubernatorial appointments that have been for submitted for confirmation.

Section 16 has been subject to judicial interpretation. Although the Constitution is silent regarding the matters that may be considered at a special session, this constitutional provision does not grant the General Assembly greater power during a special session than that permitted during a regular session.

Section 17  Execution of Laws.

He or she shall take care that the laws be faithfully executed.

Section 17 expresses the fundamental role of the Governor in Delaware’s division of governmental powers. The section is carried over verbatim from Article III, Section 13 of the 1792 and 1831 Constitutions. Delegates to the 1897 Convention did not debate this provision.

In Anderson v. State,20 the defendant argued that the state did not have discretion to decide whether to bring a habitual offender petition against her. (p. 144) Disagreeing with the defendant’s argument, the Delaware Supreme Court emphasized the fundamental premise of Section 17: “The decision as to which crimes and criminals to prosecute is entrusted … not to the judiciary, but to the executive who is charged with seeing that laws are enforced.”21 The Court noted that, as part of the executive branch, “[t]‌he Attorney General’s Office is given broad discretion when deciding against whom to focus its limited prosecutorial resources… .”22

Section 18  Approval or Veto of Bills, Orders, Resolutions or Votes; Repassage Over Veto.

Every bill which shall have passed both Houses of the General Assembly shall, before it becomes law, be presented to the Governor; if he or she approves, he or she shall sign it; but if he or she shall not approve, he or she shall return it with his or her objections to the House in which it shall have originated, which House shall enter the objections at large on the journal and proceed to reconsider it. If, after such reconsideration, three-fifths of all the members elected to that House shall agree to pass the bill, it shall be sent together with the objections to the other House, by which it shall likewise be reconsidered, and if approved by three-fifths of all the members elected to that House, it shall become a law; but in neither House shall the vote be taken on the day on which the bill shall be returned to it. In all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the Governor within ten days, Sundays excepted, after it shall have been presented to him or her, the same shall be a law in like manner as if he or she had signed it, unless the General Assembly shall, by final adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor.

For purposes of return of Bills not approved by the Governor the General Assembly shall be considered to be continuously in Session until final adjournment and the Clerk of the House of Representatives and the Secretary of the Senate shall be deemed proper recipients of such returned bills during recess or adjournment of the General Assembly other than final adjournment.

No bill shall become a law after the final adjournment of the General Assembly, unless approved by the Governor within thirty days after such adjournment. The Governor shall have power to disapprove of any item or items of any bill making appropriations of money, embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills, over the Executive veto. Every order, resolution, or vote to which the concurrence of both Houses of the General (p. 145) Assembly may be necessary, except on a question of adjournment, shall be presented to the Governor, and before the same shall take effect be approved by him or her, or being disapproved by him or her, shall be repassed by three-fifths of all the members elected to each House of the General Assembly, according to the rules and limitations prescribed in the case of a bill. Every order and resolution to which the concurrence of both Houses of the General Assembly may be necessary, except on a question of adjournment and those matters dealing solely with the internal or administrative affairs of the General Assembly, shall be presented to the Governor, and before the same shall take effect be approved by him or her, or being disapproved by him or her, shall be repassed by three-fifths of all the members elected to each House of the General Assembly, according to the rules and limitations prescribed in the case of a bill.

Section 18 establishes the Governor’s veto power with respect to the enactment of bills, orders, resolutions, and votes to which the concurrence of both Houses of the General Assembly is necessary.23 Prior Delaware constitutions did not allow the Governor to exercise veto power over legislation. During the 1853 Constitutional Convention, the delegates considered, but rejected, a veto provision because it was viewed as giving the Governor excessive powers. Regional differences also played a role in defeating the proposed executive veto provision. The Delaware Constitution of 1831 permitted the Governor to have absolute veto power over constitutional amendments.

Delegates to the Constitutional Convention of 1897 marshaled support for an executive veto of legislation. Such power was considered an important check on not only “hasty, improvident and vicious legislation” but also against “a measure which is supposed to encroach upon the Constitutional rights of particular departments of the Government.” During the debates, it was noted that the existence of the veto power was a uniquely American experience. Although in theory the British system recognized the exercise of the veto power, it had passed out of practice. In England, the absence of a written constitution, the composition of the legislative branch, in which most of the veto power rested with the House of Commons, and the tradition of the English monarch not exercising the power contributed to circumstances in which an executive veto did not operate as an effective check on the legislative branch. Accordingly, the delegates looked to the United States Constitution and other state constitutions as models for the general veto power provision in the Delaware Constitution.

Under the procedures provided by Section 18, the Governor has ten days either to approve the bill by signing it or to veto a bill by returning it to the (p. 146) General Assembly with written objections. The Delaware Supreme Court has interpreted this requirement to mean that, except with regard to appropriations of money, the Governor must approve or disapprove of the bill as a whole.24

[O]‌ur Constitution contemplates the formulating of proposed laws by the Houses of the General Assembly, and the submission of the proposed law to the Governor for his approval or disapproval. In effect, the Governor and the Houses of the General Assembly are a legislative team, but each has separate and distinct functions in the enactment of laws. It is the function of the Senate and House to agree upon the form and substance of a law, and, generally speaking, it is the function of the Governor to act as a check upon the final enactment of that law.25

Once a bill has been enacted by the General Assembly, it must be presented to the Governor. The bill cannot be recalled from the Governor by unilateral action of the General Assembly. The bill automatically becomes law if the Governor does not veto and return it within ten days, “unless the General Assembly shall, by adjournment, prevent its return, in which case it shall not be [sic] become a law without the approval of the Governor.”26

Section 18 permits the General Assembly to override the Governor’s veto. Delegates to the 1897 Constitutional Convention debated what percentage vote of the General Assembly would be required to override the Governor’s veto. The delegates reviewed the findings of a survey of state constitutions to show the different approaches adopted by other states. The survey indicated varied approaches in the number of members required to override the Governor’s veto and whether all members elected to each House of the General Assembly must vote in favor of a second passage of the bill or only members present at the time the vote is taken. In deciding on which model to follow in Delaware, the delegates attempted to strike a balance between ensuring that the executive serves as an effective check on the enactment of legislation, while at the same time preventing the Governor from defeating the will of popularly elected Representatives after both Houses of the legislature had an opportunity to closely examine the Governor’s objections and reconsider the bill. It was ultimately decided that a three-fifths vote by members elected to each House of the General Assembly achieved the appropriate balance between these competing interests.

In an effort to ensure that the General Assembly considers the Governor’s objections, the Delaware Constitution requires the House receiving the returned bill to wait one day before voting to override the Governor’s veto. The Delaware Supreme Court has held that the “same day” requirement prohibits (p. 147) the originating House from acting on the returned bill, but the provision does not prevent the other House from considering the bill for its approval or disapproval.27

Line-Item Veto

With respect to appropriations, Section 18 expressly permits the Governor to exercise line-item veto power. The constitutional debates reflect the drafters’ intent for the line-item veto to apply to only “appropriation bills.” During the debates, William Spruance stated that “[p]‌rovisions in regard to [the executive’s] power to veto separate items over appropriation bills, have been adopted into all the new [state] Constitutions, and the absence of it in the Federal Constitution is a fact greatly to be lamented.”28

Only bills containing more than one “distinct” item of appropriation are subject to the Governor’s line-item veto power. Legislation that only provides a procedure for future appropriations is not subject to the Governor’s line-item veto. A bill imposing conditions on a prior appropriation to a department is not an item of appropriation. In all of these cases, the Governor’s invalid line-item veto of a bill nullified the Governor’s partial approval of the remaining provisions in the bill and resulted in the complete failure of its enactment.29

Pocket Veto

The purpose of the veto power is to ensure the Governor’s participation in the legislative process. Conversely, Section 18 provides for the General Assembly’s participation in the veto process by requiring the Governor to return the bill with objections for the General Assembly to consider. A pocket veto—failing to act on a bill while the General Assembly is out of session—potentially frustrates this purpose by preventing the General Assembly from participating in the veto process.

Although Section 18 does not expressly provide for a pocket veto, Delaware Governors have used the pocket veto when the adjournment of the General Assembly prevented the return of a bill. In 1961, the justices of the Delaware Supreme Court issued an advisory opinion declaring that any adjournment covering the day that a bill must be returned, even a temporary adjournment, would permit the Governor to exercise pocket veto power.30 In response to this opinion, the General Assembly amended the Delaware Constitution in 1963 to provide (p. 148) that the General Assembly is continuously in session until its final adjournment. This amendment placed limitations on the pocket veto power that were intended to maximize a veto system of checks and balances. If the General Assembly is in recess, but has not finally adjourned, the Governor must return the bill to the clerk of the House of Representatives or to the Secretary of the Senate. For purposes of Section 18, the 1969 Amendment to Section 4 of Article II does not make June 30 of each even year a mandatory final adjournment of the General Assembly.

Section 19  Lieutenant-Governor; Election, Term and Qualifications; President of the Senate; Compensation.

A Lieutenant-Governor shall be chosen at the same time, in the same manner, for the same term, and subject to the same provisions as the Governor; he or she shall possess the same qualifications of eligibility for office as the Governor; he or she shall be President of the Senate, but shall have no vote unless the Senate be equally divided.

The Lieutenant-Governor, for his or her services as President of the Senate, shall receive the same compensation as the Speaker of the House of Representatives; the Lieutenant-Governor, for his or her services as a member of the Board of Pardons and for all other duties of the said office which may be provided by law, shall receive such compensation as shall be fixed by the General Assembly.

Section 19, new to the Constitution of 1897, sets forth the same eligibility requirements for the Lieutenant Governor as for the Governor. The justices of the Delaware Supreme Court have opined that the constitutional qualifications for the office of Lieutenant Governor relate exclusively to age, citizenship, and residence.31 A statute that purports to add to those constitutional qualifications by requiring the Lieutenant Governor to be of the same political party as the Governor is unconstitutional.

Although the Lieutenant Governor may cast the deciding vote if the Senate is equally divided, the justices of the Delaware Supreme Court have determined that the Lieutenant Governor is not a member of the Senate for the purpose of establishing a quorum.32 During the 1897 constitutional debates, the delegates discussed whether having a vote in the case of a tie meant that the Lieutenant Governor was a member of the Senate. The delegates noted that the office of Lieutenant Governor was patterned after Article I, Section 3 of the United States Constitution and that the Vice President of the United States is not a member of the Senate. Accordingly, in construing Article II, Section 8 of the Delaware Constitution, the Delaware Supreme Court determined that the Lieutenant Governor should not be counted for establishing a quorum of the Senate.33

(p. 149) In addition, the justices of the Delaware Supreme Court have concluded that the Lieutenant Governor’s responsibility to cast a tiebreaking vote is not affected by constitutional provisions that require action by a majority of the members of the Senate.34 The purpose of vesting the Vice President of the federal government with the tiebreaking vote is to secure at all times the possibility of a definite resolution and to avoid impasse in the Senate. Similarly, if Delaware’s Senate is equally divided, the Lieutenant Governor has the unqualified power to vote on any question, large or small. For example, the Lieutenant Governor has authority to cast the tiebreaking vote on Senate and House bills, Senate and House resolutions, Senate resolutions, Senate motions of a procedural nature, and confirmation of gubernatorial appointments.

Section 20  Vacancy in Offices of Both Governor and Lieutenant-Governor; Officers Eligible to Act; Disability of Governor.

(a)  In case the person elected Governor shall die or become disqualified before the commencement of his or her term of office, or shall refuse to take the same, or in case of the removal of the Governor from office, or of his or her death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Lieutenant-Governor; and in case of removal, death, resignation, or inability of both the Governor and Lieutenant-Governor, the Secretary of State, or if there be none, or in case of his or her removal, death, resignation, or inability, then the Attorney-General, or if there be none, or in case of his or her removal, death, resignation, or inability, then the President pro tempore of the Senate or if there be none, or in the case of his or her removal, death, resignation, or inability, then the Speaker of the House of Representatives shall act as Governor until the disability of the Governor or Lieutenant-Governor is removed, or a Governor shall be duly elected and qualified.

The foregoing provisions of this section shall apply only to such persons as are eligible to the office of Governor under this Constitution at the time the power and duties of the office of Governor shall devolve upon them respectively.

Whenever the powers and duties of the office of Governor shall devolve upon the Lieutenant-Governor, Secretary of State, or Attorney General, his or her office shall become vacant; and whenever the powers and duties of the office of Governor shall devolve upon the President pro tempore of the Senate, or the Speaker of the House of Representatives, his or her seat as a member of the General Assembly shall become vacant; and any such vacancy shall be filled as directed by this Constitution; provided, however, that such vacancy shall not be created in case either of the said persons shall be acting as Governor during a temporary disability of the Governor.

(b)  Whenever the Governor transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his or her written declaration that he or she is unable to discharge the powers and duties of his or her office, (p. 150) and until he or she transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Lieutenant-Governor as Acting Governor.

Whenever the Chief Justice of the Delaware Supreme Court, the President of the Medical Society of Delaware and the Commissioner of the Department of Mental Health, acting unanimously, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives, their written declaration that the Governor is unable to discharge the powers and duties of his or her office because of mental or physical disability, the Lieutenant-Governor shall immediately assume the powers and duties of the office as Acting Governor.

Thereafter, when the Governor transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his or her written declaration that no disability exists, he or she shall resume the powers and duties of his or her office unless the Chief Justice of the Supreme Court of Delaware, the President of the Medical Society of Delaware and the Commissioner of the Department of Mental Health, acting unanimously, transmit within five days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the Governor is unable to discharge the powers and duties of his or her office because of mental or physical disability. Thereupon the General Assembly shall decide the issue, assembling within seventy-two hours for that purpose if not then in session. If the General Assembly within ten days after receipt of the latter written declaration determines by two-thirds vote of all the members elected to each house that the Governor is unable to discharge the powers and duties of his or her office because of mental or physical disability, the Lieutenant-Governor shall continue to discharge same as Acting Governor; otherwise, the Governor shall resume the powers and duties of his or her office.

The first paragraph describes the line of succession when the office of the Governor becomes vacant because of death, permanent disability, removal, resignation, or disqualification. Section 20 provides for specifically named executive officers to fill a vacancy in the office of Governor before the present constitutionally mandated line of gubernatorial succession continues with specifically named officers from the legislative branch. Prior Delaware constitutions designated Representatives from the legislature to be first in the order of succession to fill a vacancy in the highest executive office. Article VII of the 1776 Constitution permitted the Speaker of the Legislative Council and then the Speaker of the House of the Assembly to exercise executive powers until the General Assembly nominated a new President (Governor). The 1792 Constitution in Article III, Section 14 provided for succession by the Speaker of the Senate and then the Speaker of the House of Representatives. Article III, Section 14 of the 1831 Delaware Constitution required the Speaker of the Senate, then the Speaker of the House, and finally the Secretary of State to fill a vacancy in the office of Governor.

The fourth paragraph describes the procedures to determine when the Governor is unable to discharge the powers and duties of the office because of a mental or physical disability. After a Governor is determined to be disabled and if there is a dispute about whether the Governor is able to resume the powers and (p. 151) duties of his or her office, Section 20 requires two-thirds vote by both Houses of the General Assembly. Prior constitutions provided for a similar vote by the General Assembly.

Section 21  Election and   Term of Office of Certain State Officers.

The terms of the office of the Attorney General, the Insurance Commissioner, the Auditor of Accounts and the State Treasurer shall be 4 years. These officers shall be chosen by the qualified electors of the State at general elections, and be commissioned by the Governor.

Section 21, new in the 1897 Constitution, provides for the election rather than the appointment of the Attorney General, Insurance Commissioner, State Treasurer, and Auditor of Accounts. Permitting the electorate to select these specific state officers, rather than having them appointed by the Governor, reflects the delegates’ decision to diversify the power of the executive. As originally adopted, the Attorney General and Insurance Commissioner served four-year terms, while the State Treasurer and Auditor of Accounts served two-year terms.

During the 1897 Constitutional Convention, delegates debated whether these state officers should all have a four-year term based on a need for uniformity. Because the State Treasurer and Auditor of Accounts handled the funds of the state, a shorter two-year term was chosen to permit the electorate to quickly replace incumbents who were incapable of performing the requirements of the office. A proposal was also presented to set the Insurance Commissioner’s term at two years. The delegates decided, however, that the rationale for adopting the shorter term for the State Treasurer and Auditor of Accounts did not apply to the Insurance Commissioner. In 1980, this section was amended to increase the length of the term of the Treasurer and Auditor to four years.

Delaware’s judiciary has issued several opinions regarding the office of the Attorney General and its relationship to the other branches of government. The office of Attorney General in the Delaware Constitution was copied from England to protect the public rights and enforcement of public duties in court proceedings. As Chief Law Officer of the state, the Attorney General is vested with the powers and duties conferred by statute as well as all the powers and duties existing at common law. In the absence of express legislative restriction, the Attorney General may exercise all such power and authority as the public interest may require. The justices of the Delaware Supreme Court have determined that a statute permitting the Court to issue advisory opinions upon the request of the Governor, does not constitute an infringement of the Attorney General’s constitutional sphere of authority.35

(p. 152) In Lee v. Minner,36 the United States District Court for the District of Delaware held, under Section 21, that “the Attorney General and the Insurance Commission … are elected state officials holding independent constitutional status [from the Governor]. As a result, the Governor has no controlling authority over the disclosure of records by [the Attorney General and the Insurance Commissioner.]”37 The District Court reasoned that the Governor holds no special relationship to the enforcement of a Freedom of Information Act request to the Attorney General. Accordingly, the District Court concluded that the Governor was not the proper party to the out-of-state journalist’s suit for prospective injunctive relief against the enforcement of the “citizens only” provision of Delaware’s Freedom of Information Act.38

Section 22  Election and Term of Office of Certain County Officers; Commission.

The terms of office of Clerks of the Peace, Registers of Wills, Recorders, and Sheriffs shall be 4 years. These officers shall be chosen by the qualified electors of the respective counties at general elections, and be commissioned by the Governor.

A four-year term of service for certain county officers first appeared in the 1897 Constitution. Both the 1792 and 1831 Constitutions did not set forth term limits for county officers. Article XII of the 1776 Constitution permitted certain executive officers to serve five-year terms. Delegates to the 1897 Convention did not debate this constitutional provision. The Delaware judiciary has not interpreted this section.

Section 23  Place of Office of Certain County Officers.

Prothonotaries, Clerks of the Peace, Registers of Wills, Recorders and Sheriffs shall keep their offices in the town or place in each county in which the Superior Court is usually held.

The language of Section 23, new in the 1897 Constitution, was adopted without constitutional debate and has not been subject to judicial interpretation.

Section 24  (Repealed) Abolition of Office of Clerk of Orphans’ Court; Transfer of Functions.

[This section has been repealed.]

(p. 153) Section 24 was added to the current Delaware State Constitution by a constitutional amendment approved by the 124th General Assembly.39 Section 24 related to the office of the Clerk of the Orphans’ Court, providing:

The General Assembly shall have power to transfer all or any part of the powers, functions and records of the Clerk of the Orphans’ Court for any county to such other office or offices as it deems appropriate, and to abolish the office of Clerk of the Orphans’ Court for any county.40

While in effect, Section 24 provided the General Assembly with the constitutional authority to abolish the office of the Clerk of the Orphans’ Court. Shortly after the addition of Section 24, in 1970, the 125th General Assembly abolished the Orphans’ Court as well as the office of Clerk of the Orphans’ Court.41

Years after the abolitions, Section 24 was repealed by an amendment which removed any reference to the Orphans’ Court from the Delaware Constitution.42 Accordingly, Section 24 was repealed in its entirety.(p. 154)

Footnotes:

1  Opinion of the Justices, 380 A.2d 109, 113 (Del. 1977).

2  Opinion of the Justices, 380 A.2d 109, 115 (Del. 1977).

3  Opinion of the Justices, 290 A.2d 645, 646–47 (Del. 1972).

4  Stiftel v. Malarkey, 384 A.2d 9, 17 (Del. 1977).

5  Del. H.B. 53, 144th Gen. Assem. (2007).

6  State ex rel. James v. Schorr, 65 A.2d 810, 813 (Del. 1949).

7  State ex rel. James v. Schorr, 65 A.2d 810, 813 (Del. 1949).

8  State ex rel. Southerland v. Caulk, 138 A. 354, 357 (Del. Super. Ct. 1927).

9  State ex rel. Southerland v. Hart, 129 A. 691, 693–94, 697 (Del. Super. Ct. 1925).

10  State ex rel. Southerland v. Hart, 129 A. 691, 693–97 (Del. Super. Ct. 1925).

11  State ex rel. Satterthwaite v. Highfield, 152 A. 45, 51 (Del. 1930).

12  State ex rel. Gebelein v. Killen, 454 A.2d 737, 747 (Del. 1982).

13  State ex rel. Gebelein v. Killen, 454 A.2d 737, 748 (Del. 1982).

14  State ex rel. Southerland v. Johnson, 138 A. 280, 283 (Del. Super. Ct. 1927).

15  In re Request of the Governor for an Advisory Opinion, 905 A.2d 106 (Del. 2006).

16  Opinion of the Justices, 647 A.2d 1104, 1109 (Del. 1994).

17  In re Request of the Governor for Opinion of Justices, 997 A.2d 668 (Del. 2010).

18  State ex rel. Green v. Collison, 197 A. 836 (Del. Super. Ct. 1938).

19  State ex rel. Green v. Collison, 197 A. 836, 845 (Del. Super. Ct. 1938).

20  Anderson v. State, 21 A.3d 52 (Del. 2011).

21  Anderson v. State, 21 A.3d 52, 58 (Del. 2011).

22  Anderson v. State, 21 A.3d 52, 58 (Del. 2011).

23  See Evans v. State, 2005 WL 5118396 (Del. Super. Ct. Jan. 24, 2007) (construing Section 18 and holding that because “statutory enactments require the affirmative vote of both Houses of the General Assembly and the Governor’s approval,” judicial disqualification was not automatically required where the judge’s father had voted in favor of the legislation at issue).

24  Perry v. Decker, 457 A.2d 357, 361 (Del. 1983).

25  Perry v. Decker, 457 A.2d 357, 362 (Del. 1983).

26  Opinion of the Justices, 174 A.2d 818, 820 (Del. 1961).

27  Seeney v. State, 277 A.2d 670, 674–75 (Del. 1971).

28  1 Debates and Proceedings of the Constitutional Convention of the State of Delaware 233 (1958).

29  See, e.g., Perry v. Decker, 457 A.2d 357, 362 (Del. 1983).

30  Opinion of the Justices, 175 A.2d 405, 406–07 (Del. 1961).

31  Opinion of the Justices, 290 A.2d 645, 647 (Del. 1972).

32  Opinion of the Justices, 225 A.2d 481, 483 (Del. 1966).

33  Opinion of the Justices, 225 A.2d 481, 483 (Del. 1966).

34  Opinion of the Justices, 225 A.2d 481, 485 (Del. 1966).

35  In re Opinion of the Justices, 88 A.2d 128, 139–40 (Del. 1952).

36  Lee v. Minner, 369 F. Supp. 2d 527 (D. Del. 2005).

37  Lee v. Minner, 369 F. Supp. 2d 527, 538 (D. Del. 2005).

38  Lee v. Minner, 369 F. Supp. 2d 527, 538 (D. Del. 2005).

39  56 Del. Laws ch. 148 (124th Gen. Assem.).

40  56 Del. Laws ch. 148 (124th Gen. Assem.).

41  57 Del. Laws ch. 402 (1970).

42  Del. S.B. 61, 143d Gen. Assem. (2005).