Dewey Beach Commissioner David Moskowitz will remain on the 2020 municipal election ballot, the board of election decided at a special meeting Sept. 11.
After hearing advice from Dewey Beach Town Attorney Fred Townsend, the board voted 3-0 to deny the challenge to Moskowitz’s residency and eligibility as a candidate in the election set for Saturday, Sept. 26.
Comprehensive development plan committee Chair Dave Davis filed the complaint with the town Sept. 3, stating Moskowitz is ineligible because he filed as a resident commissioner but does not meet that qualification because he is not a property owner, per town charter.
Townsend said he wanted to confirm that language in Dewey’s charter with the state that could be read to suggest that residents have to be landowners or have significant interest in property was rightfully in the charter in the face of known case law.
The 1981 charter was amended with respect to its Section 5, which outlines qualifications of the mayor and commissioners, in 2008 and 2012, Townsend said. The 2008 amendment was not relevant, he said, but the 2012 amendment is.
As originally adopted, he said, Section 5 included language that resident commissioners are to be bona fide residents and domiciliaries of the town, own real estate or be a leaseholder under a term of five years or more.
Other commissioners must either have the qualifications of a resident commissioner or be a full-time resident and domiciliary of the town, which he said suggests a candidate can be qualified to run and hold office by virtue of simply being a full-time resident and domiciliary of the town.
The 2012 amendment inserted language in a method that became popular around 2010, he said, which was not to strike language altogether and add new provisions, but rather to print the existing law and show through strikeouts what language was to be stricken and to underline language to be inserted.
Townsend said language in Section 5 Subsection C does not reflect the existence of the phrase that commissioners need to be full-time residents and domiciliaries, own real estate or be a leaseholder under a term of five years or more.
“That language was not struck in the 2012 amendment and it was not struck by any amendment since then,” he said. “Consequently, I am forced to give my interpretation that the law of the town of Dewey is that a candidate may qualify as one by virtue of being a full-time resident and domiciliary of the town without regard to ownership of land or an interest in the form of a long-term lease.”
Townsend said it was a very unusual situation, and the language still remains the law although the omission of the language was clearly an error as a result of the scrivener of the General Assembly, and that the 2012 amendment does not reflect the General Assembly’s legislative intent to strike that provision.
Davis said the town relies on the current copy of the code and charter as published. Townsend said the current charter includes the provision; Davis disagreed. He said the charter requires residency and property ownership to be a resident commissioner.
Moskowitz attorney David Finger said Davis did not dispute Moskowitz’s residency; he said Moskowitz is an indirect owner of his property, which Moskowitz said he placed in an LLC, trust and lease. Finger cited several instances of case law in which distinguishing between property owners and non-property owners’ eligibility to be a commissioner violates the constitutional requirement of equal protection under the law.
During the public comment period, several people stated Moskowitz did not follow election filing rules and was not eligible to continue his term or run for commissioner because he transferred ownership of his property into an LLC, and as an individual he is not recognized as a property owner; several said a constitutional change needs to be made in another court. Commissioner David Jasinski spoke against the complaint, and said town charter doesn’t clearly address leaseholder terms.
By email Sept. 13, Moskowitz said no one disputes that he lives in Dewey full time.
“Listening to who was making public comments at the hearing it became even more clear this was not about my eligibility,” he said. “Instead, it was an attempt to use an obscure technicality to unseat me as commissioner, prevent an election and replace me with their candidate. It’s shameful they would try to claim that a full-time resident of Dewey Beach is not eligible to hold office and the Constitution, Supreme Court and Delaware case law should be ignored. This wasted significant town resources.”
By email Sept. 14, Davis said he was considering his options.
The election will be held 10 a.m. to 6 p.m., Saturday, Sept. 26, in the Dewey Beach Life Saving Station, 1 Dagsworthy Ave. For election information, contact Dewey Beach Town Hall at 302-227-6363 or go to www.townofdeweybeach.com.