COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947
Date Submitted: November 2, 2022 Date Decided: November 16, 2022
Francis Pileggi, Esquire Kenneth Wan, Esquire Cheneise Wright, Esquire Caneel Radinson-Blasucci, Esquire Lewis Brisbois Bisgaard & Smith, LLP Delaware Department of Justice 500 Delaware Ave., Suite 700 Carvel State Building Wilmington, DE 19801 820 French Street, 6th Floor Wilmington, DE 19801
Re: Gavin J. Birney, Delaware State Sportsmen’s Association, Inc. and Bridgeville Rifle & Pistol Club, LTD v. Delaware Department of Safety and Homeland Security; Nathaniel McQueen Jr., Melissa Zebley, Civil Action No. 2022-0995-SG
Dear Counsel:
In this matter, the Plaintiffs (two gun clubs and an individual) contest the
validity of 11 Del. C. §§ 1445, 1448, codifying HB 451 (the “Statute”). The
Statute prohibits certain gun sales to, and possession by, individuals under the age
of 21. According to the Complaint,1 this law is unconstitutional under the U.S.
Constitution and violates the right to bear arms located in Article 1 Section 20 of
the Delaware Constitution of 1897, at least as applied to those aged 18-20 years.
The Defendants are State of Delaware officials and agencies (collectively, “the
1 Verified Compl. Declaratory and Injunctive Relief, DKT No. 1. State”) that would be responsible for enforcing the Statute. Undoubtedly, the
Complaint raises interesting legal issues.
However, I must dismiss this Complaint (unless the Plaintiffs elect transfer
to the Superior Court) because the Complaint raises only legal issues. This is a
court of limited jurisdiction. Unless jurisdiction is conveyed by statute (a source of
jurisdiction not pertinent here), Chancery jurisdiction exists only where adequate
relief is not available at law.2 Two flavors of such jurisdiction exist: for litigation
of equitable causes of action (again, not applicable here); and where the relief
available at law would be inadequate.
It is the latter jurisdictional hook that is asserted by the Plaintiff as the basis
for Chancery jurisdiction. The Complaint seeks not only declaratory judgments
(available at law or in Chancery),3 but also a permanent injunction “to prevent [the
State] from enforcing [the Statute];”4 relief available only in equity. In a detailed
section of the Complaint the Plaintiffs recount the basis for subject-matter
jurisdiction: “This Court has subject-matter jurisdiction under 10 Del. C. § 341
because Plaintiffs seeks [sic] equitable relief in the form of a permanent injunction.
See, e.g., Higgin v. Albence . . . ; Rigby [ v. Jennings].”5 As to the caselaw cited, I
2 Takeda Pharm. U.S.A., Inc. v. Genentech, Inc., 2019 WL 1377221, at *4 (Del. Ch. Mar. 26, 2019) (citing Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *5 (Del. Ch. Oct. 5, 2018)). 3 10 Del C. § 6501. 4 Compl. 46. 5 Id. ¶ 19. 2 find it largely unhelpful. Higgin did not consider equitable jurisdiction,6 which
apparently was not raised by counsel or the court; Rigby did apply equitable relief,7
but Rigby is a Federal case—the Federal courts merged law and equity (and
obviated such subject matter questions) by at least 1938 when they adopted the
first incarnation of the Rules of Civil Procedure.8
Nonetheless, if the Plaintiffs require equity to enforce a finding of
unconstitutionality—that is, if it appears that the State would otherwise attempt to
enforce an unconstitutional statute—they have stated a quintessential basis for
equitable jurisdiction.
That premise is undoubtably correct, but the Plaintiffs’ apparent
conclusion—that the State will ignore a declaratory judgment of the Superior
Court, affirmed (if appealed) by the Delaware Supreme Court, is absurd. Also
absurd is the corollary conclusion—that State agencies, so unbridled and corrupt as
to enforce unconstitutional laws in the face of such a finding by a court of law,
would nonetheless be compliant with an order of this Court.
6 Higgin v. Albence, 2022 WL 4239590 (Del. Ch. Sept. 14, 2022), judgment entered, (Del. Ch. 2022), aff’d in part, rev’d in part, 2022 WL 5333790 (Del. Oct. 7, 2022), and amended, (Del. Ch. 2022), and aff’d in part, rev’d in part, 2022 WL 5333790 (Del. Oct. 7, 2022). 7 Rigby v. Jennings, 2022 WL 4448220 (D. Del. Sept. 23, 2022). 8 Ross v. Bernhard, 396 U.S. 531, 539–40 (1970). Further, though different pleading was required in equity and law prior to 1938, Article III judges sat for cases in both law and equity ab initio. Kellen Funk, Equity’s Federalism, 97 Notre Dame L. Rev. 2057, 2058 (2022). 3 When considering whether a complaint states a ground for equitable
jurisdiction, this Court must look beyond the “facade of prayers,” and ascertain
what relief the plaintiffs are actually seeking.9 An incantation of words seeking
equitable relief works no magic if that relief is makeweight, pretextual or
superfluous to the true relief needed.10 Here, the Plaintiffs seek a determination
that the Statute is unconstitutional and unenforceable as violative of
constitutionally protected rights.11 Such a final judgement would no doubt cause
the agencies and officials involved to cease enforcing the Statute. For this Court to
adopt the position that a permanent injunction of potential wrongful enforcement is
necessary relief in such a case—like a similar finding that injunctive relief is
necessary to enforcement of any money judgement—would serve as an “open
sesame” to equity and would convert this into a court of general jurisdiction in
violation of 10 Del. C. §§ 341, 342.12
That is not to say that equity has no place in enforcement of constitutional
rights. It plainly, even famously, does.13 Where there is a real chance that relief
will not be forthcoming absent injunction, equity is invoked. Where the right
9 Int’l Bus. Machines Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del. Ch. 1991) (citations omitted). 10 Id. 11 Compl. 45–46. 12 See Comdisco, 602 A.2d at 78. 13 See Belton v. Gebhart, 87 A.2d 862 (Del. Ch.), aff’d, 91 A.2d 137 (Del. 1952), aff’d sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955). 4 requires a remedy bespoke to the facts, equity is invoked. Where an ongoing
deprivation of rights needs a remedy by interim relief, equity is invoked.14 Where,
as here, all that is sought at law is a legal declaration that an unconstitutional law is
unenforceable, and all that is sought in equity is a permanent injunction based on a
final adjudication of the former, the request for injunctive relief is an insufficient
tool to prize the door of Chancery.
It has been, and remains, my practice, where I doubt the existence of a
sufficient basis for equitable jurisdiction, to ask the parties to address the issue. In
that light, I should explain why I dismiss sua sponte here, without the advice of the
parties. A few years ago, I heard a similar complaint15 (the “Prior Action”)
alleging the unconstitutionality of state regulation of the right to bear arms, also
seeking declaratory judgement, and also invoking equity via enforcement of such
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COURT OF CHANCERY OF THE SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947
Date Submitted: November 2, 2022 Date Decided: November 16, 2022
Francis Pileggi, Esquire Kenneth Wan, Esquire Cheneise Wright, Esquire Caneel Radinson-Blasucci, Esquire Lewis Brisbois Bisgaard & Smith, LLP Delaware Department of Justice 500 Delaware Ave., Suite 700 Carvel State Building Wilmington, DE 19801 820 French Street, 6th Floor Wilmington, DE 19801
Re: Gavin J. Birney, Delaware State Sportsmen’s Association, Inc. and Bridgeville Rifle & Pistol Club, LTD v. Delaware Department of Safety and Homeland Security; Nathaniel McQueen Jr., Melissa Zebley, Civil Action No. 2022-0995-SG
Dear Counsel:
In this matter, the Plaintiffs (two gun clubs and an individual) contest the
validity of 11 Del. C. §§ 1445, 1448, codifying HB 451 (the “Statute”). The
Statute prohibits certain gun sales to, and possession by, individuals under the age
of 21. According to the Complaint,1 this law is unconstitutional under the U.S.
Constitution and violates the right to bear arms located in Article 1 Section 20 of
the Delaware Constitution of 1897, at least as applied to those aged 18-20 years.
The Defendants are State of Delaware officials and agencies (collectively, “the
1 Verified Compl. Declaratory and Injunctive Relief, DKT No. 1. State”) that would be responsible for enforcing the Statute. Undoubtedly, the
Complaint raises interesting legal issues.
However, I must dismiss this Complaint (unless the Plaintiffs elect transfer
to the Superior Court) because the Complaint raises only legal issues. This is a
court of limited jurisdiction. Unless jurisdiction is conveyed by statute (a source of
jurisdiction not pertinent here), Chancery jurisdiction exists only where adequate
relief is not available at law.2 Two flavors of such jurisdiction exist: for litigation
of equitable causes of action (again, not applicable here); and where the relief
available at law would be inadequate.
It is the latter jurisdictional hook that is asserted by the Plaintiff as the basis
for Chancery jurisdiction. The Complaint seeks not only declaratory judgments
(available at law or in Chancery),3 but also a permanent injunction “to prevent [the
State] from enforcing [the Statute];”4 relief available only in equity. In a detailed
section of the Complaint the Plaintiffs recount the basis for subject-matter
jurisdiction: “This Court has subject-matter jurisdiction under 10 Del. C. § 341
because Plaintiffs seeks [sic] equitable relief in the form of a permanent injunction.
See, e.g., Higgin v. Albence . . . ; Rigby [ v. Jennings].”5 As to the caselaw cited, I
2 Takeda Pharm. U.S.A., Inc. v. Genentech, Inc., 2019 WL 1377221, at *4 (Del. Ch. Mar. 26, 2019) (citing Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *5 (Del. Ch. Oct. 5, 2018)). 3 10 Del C. § 6501. 4 Compl. 46. 5 Id. ¶ 19. 2 find it largely unhelpful. Higgin did not consider equitable jurisdiction,6 which
apparently was not raised by counsel or the court; Rigby did apply equitable relief,7
but Rigby is a Federal case—the Federal courts merged law and equity (and
obviated such subject matter questions) by at least 1938 when they adopted the
first incarnation of the Rules of Civil Procedure.8
Nonetheless, if the Plaintiffs require equity to enforce a finding of
unconstitutionality—that is, if it appears that the State would otherwise attempt to
enforce an unconstitutional statute—they have stated a quintessential basis for
equitable jurisdiction.
That premise is undoubtably correct, but the Plaintiffs’ apparent
conclusion—that the State will ignore a declaratory judgment of the Superior
Court, affirmed (if appealed) by the Delaware Supreme Court, is absurd. Also
absurd is the corollary conclusion—that State agencies, so unbridled and corrupt as
to enforce unconstitutional laws in the face of such a finding by a court of law,
would nonetheless be compliant with an order of this Court.
6 Higgin v. Albence, 2022 WL 4239590 (Del. Ch. Sept. 14, 2022), judgment entered, (Del. Ch. 2022), aff’d in part, rev’d in part, 2022 WL 5333790 (Del. Oct. 7, 2022), and amended, (Del. Ch. 2022), and aff’d in part, rev’d in part, 2022 WL 5333790 (Del. Oct. 7, 2022). 7 Rigby v. Jennings, 2022 WL 4448220 (D. Del. Sept. 23, 2022). 8 Ross v. Bernhard, 396 U.S. 531, 539–40 (1970). Further, though different pleading was required in equity and law prior to 1938, Article III judges sat for cases in both law and equity ab initio. Kellen Funk, Equity’s Federalism, 97 Notre Dame L. Rev. 2057, 2058 (2022). 3 When considering whether a complaint states a ground for equitable
jurisdiction, this Court must look beyond the “facade of prayers,” and ascertain
what relief the plaintiffs are actually seeking.9 An incantation of words seeking
equitable relief works no magic if that relief is makeweight, pretextual or
superfluous to the true relief needed.10 Here, the Plaintiffs seek a determination
that the Statute is unconstitutional and unenforceable as violative of
constitutionally protected rights.11 Such a final judgement would no doubt cause
the agencies and officials involved to cease enforcing the Statute. For this Court to
adopt the position that a permanent injunction of potential wrongful enforcement is
necessary relief in such a case—like a similar finding that injunctive relief is
necessary to enforcement of any money judgement—would serve as an “open
sesame” to equity and would convert this into a court of general jurisdiction in
violation of 10 Del. C. §§ 341, 342.12
That is not to say that equity has no place in enforcement of constitutional
rights. It plainly, even famously, does.13 Where there is a real chance that relief
will not be forthcoming absent injunction, equity is invoked. Where the right
9 Int’l Bus. Machines Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del. Ch. 1991) (citations omitted). 10 Id. 11 Compl. 45–46. 12 See Comdisco, 602 A.2d at 78. 13 See Belton v. Gebhart, 87 A.2d 862 (Del. Ch.), aff’d, 91 A.2d 137 (Del. 1952), aff’d sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955). 4 requires a remedy bespoke to the facts, equity is invoked. Where an ongoing
deprivation of rights needs a remedy by interim relief, equity is invoked.14 Where,
as here, all that is sought at law is a legal declaration that an unconstitutional law is
unenforceable, and all that is sought in equity is a permanent injunction based on a
final adjudication of the former, the request for injunctive relief is an insufficient
tool to prize the door of Chancery.
It has been, and remains, my practice, where I doubt the existence of a
sufficient basis for equitable jurisdiction, to ask the parties to address the issue. In
that light, I should explain why I dismiss sua sponte here, without the advice of the
parties. A few years ago, I heard a similar complaint15 (the “Prior Action”)
alleging the unconstitutionality of state regulation of the right to bear arms, also
seeking declaratory judgement, and also invoking equity via enforcement of such
judgement by injunction.16 The plaintiff organizations in the Prior Action were the
very same as the Plaintiffs here. Those plaintiffs were represented by the same
counsel as the Plaintiffs here. After oral argument, I dismissed that matter sua
14 I note that the Complaint lacks a prayer for a preliminary injunction and seeks only a permanent injunction. 15 Bridgeville Rifle & Pistol Club, Ltd v. Small, C.A. No. 11832-VCG (Del. Ch. Jun. 15, 2016) (TRANSCRIPT). 16 Verified Compl. for Declaratory and Injunctive Relief, Bridgeville Rifle & Pistol Club, Ltd v. Small, C.A. No. 11832-VCG (Del. Ch. Dec. 21, 2015), DKT No. 1. 5 sponte subject to transfer to the law courts, where, I note, the plaintiffs ultimately
received the relief they sought.17
In dismissing the Prior Action, I held from the bench that:
There was a request for injunctive relief here, and I certainly believe it was made in good faith. I’m going to quote here the same language that the court used in Doe v. Coupe quoted from the Comdisco opinion. ‘It has been frequently said that this Court, in determining jurisdiction, will go behind the facade of prayers to determine the true reason for which plaintiff has brought the suit. By this, it is meant that a judge in equity will take a practical view of the complaint and will not permit a suit to be brought in Chancery where a complete legal remedy otherwise exists but where the plaintiff has prayed for some type of traditional equitable relief as a kind of formulaic open sesame to the Court of Chancery. A practical analysis of the adequacy of any legal remedy then must be the point of departure for each matter which comes before this Court.’ *** Here, there is an allegation of irreparable harm, but it is irreparable harm that is going to be repaired by, or to the extent it can be repaired, that it’s going to be alleviated by a decision about the propriety of these regulations; that is, by declaratory judgment. All that is really necessary here is for a court to issue a declaratory judgment. If the Superior Court or this Court tells the State that these laws are not constitutional, then that really ends the matter. There is no further relief that is necessary.18
That case, and holding, are on all fours here. Of course, I may be, or may
have been, mistaken, a matter which could be addressed by motion for reargument
or interlocutory appeal, if appropriate. And I do not hesitate to aver that I have
17 Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 661–62 (Del. 2017). 18 Bridgeville Rifle & Pistol Club, Ltd v. Small, C.A. No. 11832-VCG, 82–83 (Del. Ch. Jun. 15, 2016) (TRANSCRIPT). 6 great respect for Plaintiffs’ counsel, who is one of the leading equity practitioners
in our bar. On the other hand, I have no interest in having my courtroom become
the Echo Canyon of equity. Accordingly, the Complaint is dismissed with leave to
transfer. An Order is attached.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
7 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
GAVIN J. BIRNEY; DELAWARE ) STATE SPORTSMEN’S ) ASSOCIATION, INC. and ) BRIDGEVILLE RIFLE & PISTOL ) CLUB, LTD., ) ) Plaintiff, ) ) v. ) C.A. No. 2022-0995-SG ) DELAWARE DEPARTMENT OF ) SAFETY AND HOMELAND ) SECURITY; NATHANIEL ) MCQUEEN JR. in his official ) capacity as Cabinet Secretary, ) Delaware Department of Safety and ) Homeland Security; and COL. ) MELISSA ZEBLEY in her official ) capacity as superintendent of the ) Delaware State Police, ) ) Defendant. )
ORDER DISMISSING THE COMPLAINT WITH LEAVE TO TRANSFER
AND NOW, this Wednesday, November 16, 2022, upon review of
Plaintiffs’ Verified Complaint for Declaratory and Injunctive Relief (the
“Complaint”), IT IS HEREBY ORDERED that the Complaint is DISMISSED in
its entirety with leave to transfer subject to 10 Del C. § 1902.
Vice Chancellor