The Delaware Supreme Court hears oral arguments on the ongoing Diamond State Port Corporation Board (DSPC) dispute between the State Senate and Gov. Matt Meyer.
The high court is planning to issue an advisory opinion at the request of both the General Assembly and Gov. Meyer following the governor's attempt to withdraw nominations made by Bethany Hall-Long to the DSPC Board during her two weeks as governor.
Despite the governor's withdrawal request, the Senate Executive Committee voted to send four of the nominees to the full Senate to confirm — a full vote has yet to occur.
The nominees include Local International Longshoreman’s Association (ILA) President William Ashe, former Secretary of State Jeff Bullock, Local Laborers' International Union of North America (LiUNA) Business Manager Curtis Linton and International Union of Operating Engineers (IUOE) Business Representative James Ascione.
The fifth nominee, former Delaware Board of Pilot Commissioners Chair Robert Medd, withdrew his nomination.
The State Supreme Court is now faced with answering the following questions: does the Delaware Constitution permit Gov. Meyer to withdraw Hall-Long's nominations to the DSPC Board, and if the answer is no and the Senate votes to confirm the nominations, does Gov. Meyer have the discretion to withhold commissions for confirmed nominees to the Board?
Commissions are certificates signed by the governor, confirming an individual meets the requirements of the position they are appointed to.
"Nominations" vs "appointments": the key question
Eric Juray, legal counsel on behalf of the General Assembly, is largely basing the legislature's ability to proceed with confirming the candidates on the argument that the Delaware Constitution empowers the governor to "appoint" and not to "nominate."
While "appointments" and "nominations" are often used interchangeably to describe someone the governor taps to be a cabinet secretary, serve on a board, etc., Juray says the distinction becomes important when interpreting the Delaware Constitution.
Article III Section 9 of the state constitution reads: "[The governor] 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."
Juray argues under this language, once a candidate is named by the governor, they officially become an "appointment," and it is then solely up to the State Senate to confirm that appointment — effectively a two-step process.
"There's an appointment, and then there's Senate consent to the appointment. The [executive branch] appoints. There is not three phrases in Delaware under our reading of the constitution," Juray told the court.
Three phrases refers to the interpretation by Gov. Meyer's counsel that the appointment process is as follows: the governor makes a nomination, the State Senate confirms the nomination and the nomination then becomes an appointment with the signing of a commission by the governor.
Juray argues because a candidate begins as an appointment, not a nomination, the executive branch does not have the power to withdraw a candidate once the name has been delivered to the State Senate.
“From our point of view, there's a point in time when it no longer becomes a purely executive function — when the power must shift to the Senate and the executive can no longer interfere with the work of the Senate," Juray said.
When justices pointed out all of the correspondence between Hall-Long, the State Senate and Gov. Meyer referred to the candidates as "nominations" and not "appointments," Juray responded: "I think here there are customs, there's template letters, there's words that get used, and in an issue like this, where people are trying to be friendly between coordinate branches of government, I don't think it's surprising to see light language used and trying to be collegial. But the difference between 'nominate' and 'appoint' doesn't have legal significance until it does, and it does now squarely before the court."
But Gov. Meyer’s lawyer Martin Lessner argues Juray's interpretation pits Delaware's Constitution against the U.S. Constitution and contradicts a slew of historical legal precedent.
"The word nominate is implied in the Delaware Constitution because to get the consent of the Senate, the governor has to nominate somebody. How else would the governor get the consent of the Senate if he doesn't tell the Senate who he is nominating for that position? It is an implied power if you have the power and the authority to seek Senate consent, you have the implied power to put the nomination before it," Lessner said.
"The position of the General Assembly, we suggest, is made — when they say that the Delaware Constitution has an entirely different process — is not supported by the text, is not supported by the law or the constitution, but it's made out of necessity because it's the only argument the General Assembly has to forestall what we think is the simple resolution of this case — that under the federal law, and Delaware's Constitution is the same, the governor has the right to withdraw at any time," he added.
As far as whether or not Gov. Meyer has the right to withhold commissions, Juray argues the very signing of a commission is a "purely ministerial act" and not a necessary step in the appointment process.
Article III Section 12 of the Delaware Constitution reads: "All Commissions shall be in the name of the State, and shall be sealed with the great seal and signed by the Governor."
Juray argues there's nothing stating a commission is directly tied to the appointment process, other than in the case of a recess appointment.
"[The sections] don't reference one another or connect in any way. There's no language in either provision making a commission a formal requirement to actually take office. Section 12 talks about the forms of commissions, not a process demonstrating it's a necessary part of appointments," Juray argued.
Lessner pointed out he feels this interpretation would again conflict with historical precedent.
"The federal law has been for 200 years, dating back to Marbury v. Madison, the final act investing office is the issuance of the commission. So again, unless the court is going to say that the Delaware Constitution is radically different than the Federal Constitution, the commission is the final act of appointment — the governor's authority to appoint," Lessner said.
The Supreme Court is expected to issue an advisory opinion in the coming weeks, although their opinion will not be legally binding.
