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Delaware Senate Democrats

Delaware General Assembly to research Constitutional powers for removal in wake of Auditor’s indictment

November 8, 2021

House, Senate retains former Supreme Court Justice Randy Holland for guidance

DOVER – House and Senate leadership on Tuesday announced plans to formally research the General Assembly’s powers and procedures under Article III, Section 13 and Article VI, Section 1 of the Delaware Constitution, with findings due before the Legislature returns to session on January 11, 2022.

While Delaware’s Constitution clearly contemplates the removal of public officials for reasonable cause, recent questions have been raised about Article III, Section 13, a three-sentence, never-before-used Constitutional provision that permits the General Assembly to petition the Governor to remove an elected official from office “for any reasonable cause.” The questions – raised by legislators in both chambers – come after Delaware Auditor Kathy McGuiness was indicted on two felonies and three misdemeanors on October 11.

The Senate passed a concurrent resolution on Nov. 1 asking the Delaware Supreme Court for advisory opinion on five key points of the Constitutional language, which dates back to 1897.

Rather than vote on that measure, the House passed a concurrent resolution of its own that also sought a Supreme Court advisory opinion. The House version also would have given the justices a six-week deadline to release that opinion, while convening a joint meeting of the House and Senate Judiciary Committees to determine a process for moving forward with or without the Court’s opinion. The approach being announced today will allow the legislature to move efficiently ahead of January’s return to session, but with the guidance of one of Delaware’s most respected Constitutional authorities.

“While neither resolution received a final vote, what became abundantly clear on Nov. 1 was that Democratic legislators overwhelmingly agree we need to quickly come to an understanding of the Constitutional options at our disposal and how removal proceedings might work across both chambers,” said Senate President Pro Tempore Dave Sokola, D- Newark. “The solution we are announcing today will put us in a position to act appropriately when the legislature returns in January.”

Over the coming weeks, Senate and House leadership – with assistance from Judiciary Committee members – will prepare findings and recommendations with the guidance of special advisor Randy J. Holland, the longest-serving Delaware Supreme Court justice in history and one of the most respected state constitutional law experts in Delaware. Former Justice Holland will provide his services pro bono.

“The provisions of the Delaware Constitution related to removing an elected official from office have serious legal ramifications,” former Justice 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.”

Recognizing the potential conflicts of interest that will likely arise if the Auditor continues to actively serve in her elected financial watchdog role while facing criminal charges related to alleged abuses of those powers, leadership of both the House and Senate have repeatedly called for Auditor McGuiness to take a voluntary leave of absence while her legal case is pending, a request they reiterated Tuesday.

Auditor McGuiness has rejected those requests through her attorney.

“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 Pete Schwartzkopf. “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.”

With a legal review process now in place, and findings due to the Legislature by January 11, the special session called by Sen. Sokola for 4 p.m. today to consider House Concurrent Resolution 42 has been cancelled.