HOUSE OF REPRESENTATIVES

152nd GENERAL ASSEMBLY

HOUSE BILL NO. 166

AN ACT PROPOSING AN AMENDMENT TO SECTION 3 OF ARTICLE IV OF THE DELAWARE CONSTITUTION RELATING TO THE APPOINTMENT OF JUDGES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Section 3 of Article IV of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 3. Appointment of judges; terms of office; vacancies; political representation; confirmation of appointment.

Section 3. The Chief Justice and Justices of the Supreme Court, the Chancellor and Vice-Chancellors of the Court of Chancery, the President Judge and Judges of the Superior Court, the Chief Judge and Judges of the Family Court, the Chief Judge and Judges of the Court of Common Pleas, and the Chief Magistrate of the Justice of the Peace Court shall be appointed by the Governor, by and with the consent of a majority of all the members elected to the Senate, for a term of 12 years each, and the persons so appointed shall enter upon the discharge of the duties of their respective offices upon taking the oath of office prescribed by this Constitution. The Governor shall submit his or her appointment within a period from 30 days before to 90 days after the occurrence of a vacancy howsoever caused. If a vacancy shall occur, by expiration of term or otherwise, at a time when the Senate shall not be in session, the Governor shall within a period from 30 days before to 90 days after the happening of any such vacancy convene the Senate for the purpose of confirming his or her appointment to fill said vacancy and the transaction of such other executive business as may come before it. Such vacancy shall be filled as aforesaid for the full term. Notwithstanding a vacancy, whether occurring when the Senate is or is not in session, an incumbent whose term has expired may hold over in office until the incumbent, or a new appointee, is confirmed and takes the oath of office for the next term, but in no event shall an incumbent whose term has expired hold over in office for more than 90 days after the expiration of the term. In all instances, the term of a new or reappointed Chief Justice or Justice of the Supreme Court, Chancellor or Vice-Chancellor of the Court of Chancery, President Judge or Judge of the Superior Court, the Chief Judge and Judges of the Family Court, the Chief Judge and Judges of the Court of Common Pleas, or Chief Magistrate of the Justice of the Peace Court shall begin after the occurrence of the vacancy and on the date the oath of office is taken, thus qualifying the individual to serve, but the appointment shall be forfeited if such oath is not taken within 30 days of confirmation.

Appointments to the office of the State Judiciary shall at all times be subject to all of the following limitations:

First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

Fourth, at any time when the total number of Judges of the Family Court shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.

Fifth, at any time when the total number of Judges of the Court of Common Pleas shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.

Sixth, before sending the name of any person to the Senate for confirmation as the appointment of the Governor to a vacancy in any Judicial Office as aforesaid, the Governor shall, not less than ten (10) days before sending the name of such person to the Senate for confirmation, address a public letter to the President of the Senate informing him or her that he or she intends to submit to the Senate for confirmation as an appointment to such vacancy the name of the person he or she intends to appoint.

Seventh, there shall be a Judicial Nominating Commission that shall recommend to the Governor no fewer than three qualified persons to fill each vacant Judicial Office within 60 days of notice of the occurrence, or expected occurrence, of the vacancy of a Judicial Office. When a sitting judge seeks reappointment upon expiration of their term, the Judicial Nominating Commission may send the Governor only the name of the sitting judge. The Governor shall only nominate a person for Judicial Office that is recommended by the Judicial Nominating Commission, provided that the Governor may ask the Judicial Nominating Commission to send the names of up to 3 additional qualified candidates for consideration, which the Commission shall do within 14 days. If the Senate fails to confirm the Governor’s nomination, the Governor may request an additional list from the Judicial Nominating Commission of no fewer than 3 qualified persons willing to accept the vacant Judicial Office.

The Judicial Nominating Commission shall consist of 12 members that shall be appointed by the Governor. Four members shall reside in New Castle County; 4 members shall reside in Kent County; and 4 members shall reside in Sussex County. No member of the Judicial Nominating Commission shall hold elective constitutional office during the member’s term on the Commission.

SYNOPSIS

This Act is the first leg of a constitutional amendment that requires the Governor to select judicial candidates from a list provided by a Judicial Nominating Commission. Although the Governor currently selects judicial nominees through a Judicial Nominating Commission created by Executive Order, this bill codifies the Judicial Nominating Commission into the State Constitution. The Judicial Nominating Commission shall consist of 12 members appointed by the Governor, provided that 4 members reside in New Castle County; 4 members reside in Kent County; and 4 members reside in Sussex County. No member shall hold elective constitutional office during the member’s term on the Commission.