Former justice to help research how to remove an elected official from office

General Assembly abandons resolution asking Supreme Court for guidance
November 9, 2021

Former Delaware Supreme Court Justice Randy Holland will research the state’s constitutional powers to remove an elected official from office as the General Assembly wrestles with what to do when an elected official has been charged with a crime.

The Senate was scheduled to meet Nov. 9 to consider a concurrent resolution the House passed Nov. 1, but canceled the special session the same day in order to take a different approach.

“What we announced today gets us to where we wanted to go faster,” said Scott Goss, communications director for the Senate Majority Caucus.

This issue of removing an elected official arose following the Oct. 11 indictment of State Auditor Kathy McGuiness for official misconduct, resulting in two felony and three misdemeanor charges.

McGuiness pleaded innocent to the charges and has refused to step down from office despite repeated calls from the Democratic Party. Democratic leadership has asked her to take a leave of absence, but McGuiness continues to conduct work as state auditor.

Also continuing to work is Sen. Darius Brown, D-Wilmington, who was charged with offensive touching and disorderly conduct in May after police say he punched a woman while the two were in a Wilmington restaurant, and then threw a glass of water against the wall. On Nov. 8, Gov. John Carney signed three criminal justice bills sponsored by Brown, including the Clean Slate Act, which automates Delaware’s existing expungement process.

Regarding McGuiness, both the House and Senate had passed nearly identical concurrent resolutions Nov. 1 seeking guidance from the Supreme Court – the same day the General Assembly held a special session to approve the new legislative districts. The only difference between the resolutions was the House resolution included a specific date for the Supreme Court to respond. Questions remained as to whether the Supreme Court would offer an opinion, and if so, whether it would provide a response by the date set by the House resolution. Instead of amending the House concurrent resolution and having the two bodies potentially go back and forth over details, Goss said, Senate and House leaders decided to take a new course.

Holland will research the General Assembly’s powers and procedures under the Delaware Constitution for removing an elected official from office – a process that has no precedent in the state. Under Article III, Section 13, the Constitution permits the General Assembly to petition the governor to remove an elected official from office “for any reasonable cause.” 

Since the General Assembly has never removed an official through that channel, it is seeking guidance to ensure the decision has sound legal standing and would survive a court challenge.

“The provisions of the Delaware Constitution related to removing an elected official from office have serious legal ramifications,” Holland said. “I understand the gravity of what is being asked of me, and I am prepared to work impartially with the Legislature to help forge a better understanding of case law, and the legislative record so the General Assembly has the information needed to make an informed decision about its path forward.” 

Holland, the longest-serving Delaware Supreme Court justice in history, is providing his services pro bono and will submit a report with his findings to the Legislature by the time it convenes for the new legislative year Tuesday, Jan. 11.

“Justice Holland has an impeccable reputation, and his record of service on the Delaware Supreme Court is without compare. I thank him for graciously agreeing to assist us in this matter,” said Speaker of the House Rep. Pete Schwartzkopf, D-Rehoboth Beach. “No one knows more about the Delaware Constitution and its interpretation than Justice Holland, and I have full faith in his ability to provide us with the best possible legal analysis and advice when it comes to this unprecedented issue.”

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