In re Requests of an Opinion of the Justices

• Court: Supreme Court of Delaware
• Decided: March 7, 2025
• Docket: 35 and 38 2025
• Status: Published

Opinion

SUPREME COURT OF DELAWARE March 7, 2025

The Honorable Matthew Meyer Governor of the State of Delaware Carvel State Building, Twelfth Floor 820 N. French Street Wilmington, DE 19801

The Honorable David P. Sokola President Pro Tempore Delaware State Senate Legislative Hall Dover, DE 19901

The Honorable Melissa Minor-Brown Speaker Delaware House of Representatives Legislative Hall Dover, DE 19901

In re: Requests for an Opinion of the Justices, Nos. 35, 2025 and 38, 2025

Dear Governor Meyer, President Pro Tempore Sokola, and Speaker of the House Minor-Brown:

The Governor has requested the opinion of the Justices of the Delaware

Supreme Court concerning the proper construction of Article III, Sections 9 and 12

of the Delaware Constitution of 1897. Immediately after the Governor made his The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

request—in fact on the same day—the 153rd General Assembly passed Senate

Concurrent Resolution No. 16, requesting the opinion of the Justices as to issues

coincident with those raised by the Governor’s request.1

Both requests followed the previous Governor’s nomination of five directors

to the Diamond State Port Corporation’s (“DSPC’s”) board of directors and the

current Governor’s notice to the Senate that he was withdrawing the nominations

and requesting the Senate to take no further action on them. The Senate responded

that the previous Governor’s nominees remained “viable” and refused to recognize

their withdrawal.2

This chain of events prompted the Governor to submit the following questions

to the Justices of this Court:

(1) Under Article III, Sections 9 and 12 of the Delaware Constitution, does the Governor “have the discretion to withdraw the nominations prior to Senate confirmation?”3 (2) “If the answer to the preceding question is in the negative, [and] if the Senate votes to confirm the nominations, [does the Governor]

1 10 Del. C. § 141(a) provides that “[t]he Justices of the Supreme Court, whenever the Governor of this State or a majority of the members elected to each House may by resolution require it for public information, or to enable them to discharge their duties, may give them their opinions in writing touching the proper construction of any provision in the Constitution of this State . . . .” 2 J.A. to Opening Brs. at A75. 3 Id. at A92.

2 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

have the discretion to withhold issuing commissions to the subject offices?”4 Under Senate Concurrent Resolution No. 16, the General Assembly submitted

the following questions to the Justices of this Court:

(1) “Did the Delaware Constitution, including Article III, Section 9 thereof, empower Governor Bethany Hall-Long to submit nominations to the State Senate on a date between January 7, 2025, and January 21, 2025?”5

(2) “If the answer to Question 1 is affirmative, does the Delaware Constitution, including Article III, Section 9 thereof, and separation of powers considerations imbued therein, permit Governor Matthew Meyer to withdraw the Nominations lawfully before the Senate for consideration?”6 By order dated February 6, 2025, we consolidated these requests and

appointed counsel to brief the Governor’s and the General Assembly’s respective

positions.7

4 Id. 5 Id. at A95. 6 Id. 7 Under 10 Del. C. § 141(b), upon receipt of a request under §141(a), “[t]he Justices . . . may appoint 1 or more members of the Delaware Bar . . . for the purpose of briefing or arguing the legal issues submitted by the Governor or General Assembly.” The Court appointed the firm of Young Conway Stargatt & Taylor, LLP, to brief Governor Meyer’s position in response to all questions and Prickett, Jones & Elliott, P.A., to brief the General Assembly’s position in response to all questions. Both firms graciously accepted these appointments and discharged their appointed tasks with skill and professionalism in the finest tradition of the Delaware Bar. For that, the Court is grateful.

3 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

Because the questions put to us overlapped and because we consider it

important to address other considerations relevant to requests for advisory opinions

under 10 Del. C. § 141(a), we reformulated the questions.8 We begin with the

reformulated questions and our summary answers:

(1) Given Supreme Court precedent, should the Court respond to the questions from the Governor and the General Assembly through 10 Del. C. § 141?9

ANSWER: Yes. The questions raise an issue of first impression bearing on a present

constitutional duty awaiting performance by the Governor and the Senate. Because

it is undisputed that none of the individuals whose names were submitted to the

Senate by Governor Hall-Long has assumed office, a writ of quo warranto10 in the

Superior Court would, at present, be procedurally improper. Accordingly, it is in the

public interest that we answer Question 3. For the reasons stated below, we need not

answer Question 2. And because our answer to Question 3 is in the affirmative, we

need not answer Question 4.

8 See Order, In re: Requests for an Advisory Opinion of the Justices, Nos. 35, 2025C & 38, 2025C (Del. Feb. 6, 2025) (Dkt. 3). 9 See, e.g., Opinion of the Justices, 424 A.2d 663, 664 (Del. 1980) (declining to advise on “the issue of the right to hold public office” because regular legal proceedings were available); Opinion of the Justices, 200 A.2d 570, 572 (Del. 1964) (declining to answer a hypothetical question that had “no bearing upon a present constitutional duty requiring” action). 10 “The writ of quo warranto ‘is a remedy that is essentially adversarial in nature that seeks to remove the challenged officer from a position.’” Capriglione v. State ex rel. Jennings, 279 A.3d 803, 805 n.13 (Del. 2021) (quoting 65 Am. Jur. 2d Quo Warranto § 2 (2021)).

4 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

Assuming the answer to Question 1 is affirmative:

(2) Did the Delaware Constitution, including Article III, Section 9, empower Governor Bethany Hall-Long to submit Diamond State Port Corporation nominations to the State Senate between January 7, 2025 and January 21, 2025?

ANSWER: Since submitting his questions, the Governor has stated through

appointed counsel that he does not dispute that, between January 7 and 21, 2025, the

Delaware Constitution empowered Governor Bethany Hall-Long to submit the

names of potential appointees for the Diamond State Port Corporation board of

directors to the State Senate for its consent. Nor does the General Assembly contest

Governor Hall-Long’s power to submit names to the Senate for confirmation, though

it recasts her nominations as “appointments.” Regardless of the nomenclature used

to describe Governor Hall-Long’s submissions, there is no longer an actual

controversy surrounding her power to make them. We therefore respectfully decline

to give our opinions as to Question 2.

(3) Assuming the answer to Question 2 is affirmative, did the Delaware Constitution, including Article III, Section 9, and separation of powers considerations, permit Governor Meyer to withdraw those nominations before Senate confirmation? ANSWER: Yes. Article III, Section 9 of the Delaware Constitution, while granting

the Governor the appointment power subject to the Senate’s consent, does not

specify how the Governor starts the appointment process. Here, Governor Hall-

5 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

Long initiated the appointments by delivering nomination letters to the Senate.

Initiating the appointment process by submitting nominations to the Senate is not

prohibited by, and is in fact consistent with, Article III, Section 9’s text. And as

explained more fully below, the Governor may withdraw a nomination before a

majority of the Senate has consented to it.

(4) Assuming the answer to Question 3 is negative and the Senate votes to confirm the nominations, does Governor Meyer have the discretion to withhold commissions for confirmed nominees to the Diamond State Port Corporation?

ANSWER: Because we answer Question 3 in the affirmative, we need not answer

Question 4.

I

The events leading to the Governor’s and the General Assembly’s questions

are not complicated. On January 7, 2025, Governor John C. Carney, Jr., resigned his

office to become the Mayor of the City of Wilmington. Then-Lieutenant Governor

Bethany Hall-Long became Governor by operation of law. By five separate letters

dated January 16, 2025, Governor Hall-Long “nominate[d] for the consideration of

the Senate to confirm appointment” five nominees each “to be appointed a Director

of the Board of Directors of the Diamond State Port Corporation . . . .”11

11 J.A. to Opening Brs. at A55–59.

6 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

On January 21, 2025, on the same day he was sworn in as the 76 th Governor

of Delaware, Matthew Meyer delivered a letter to the State Senate withdrawing

Governor Hall-Long’s five nominations to the DSPC Board. Later that day, the

President Pro Tempore of the Senate responded by letter to Governor Meyer,

informing him that the Senate believed that Governor Hall-Long’s nominees

remained “viable nominees before the Senate.”12 In short, the Senate did not accept

Governor Meyer’s withdrawal of the nominations and proceeded with Executive

Committee consideration of four of the five nominees,13 voting them “out of

committee” on January 30, 2025.14 The Governor’s request for the opinion of the

Justices and Senate Concurrent Resolution No. 16 followed.

12 Id. at A75. 13 One of Governor Hall-Long’s nominees withdrew his own nomination, which the Senate accepted. See Opening Br. in Support of the Position of Governor Meyer at 8. 14 J.A. to Opening Brs. at A94. See also id. at A81.

7 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

II

Our opinions, expressed in summary fashion above, are based on the

following considerations:

Question 1: Given Supreme Court precedent, should the Court respond to the questions from the Governor and the General Assembly through 10 Del. C. § 141?15

Both Governor Meyer and the General Assembly, while recognizing that

Delaware law permits, but does not require, the Justices to give their opinion upon

request under 10 Del. C. § 141(a), urge us to answer the questions in the interest of

resolving an active controversy over their respective roles in the appointment

process. We in turn recognize that any opinions we might offer are “non-

adjudicative expressions of personal points of view,”16 which are not binding in

litigation.17 Having considered these limitations, we are satisfied that answering

Question 3 as reformulated above will contribute to the resolution of the controversy

and therefore serve the public’s interest in the orderly administration of our State

government.

15 See cases cited supra note 9. 16 Opinion of the Justices, 413 A.2d 1245, 1248 (Del. 1980). 17 In re Request for an Opinion of the Justices, 155 A.3d 371, 372 (Del. 2017).

8 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

Question 3: Assuming the answer to Question 2 is affirmative, did the Delaware Constitution, including Article III, Section 9, and separation of powers considerations, permit Governor Meyer to withdraw those nominations before Senate confirmation?

Governor Meyer claims that his right to withdraw nominations before the

Senate provides consent is an implicit part of his appointment power under the

Delaware Constitution. By contrast, the General Assembly argues that the Governor

cannot withdraw names that have already been submitted to the Senate for

consideration because those nominations are “appointments” over which jurisdiction

is “vest[ed] exclusively in the Senate.”18 For the reasons stated below, we conclude

that Governor Hall-Long’s submissions are nominations and that Governor Meyer

has the power to withdraw nominations before the Senate confirms them.

We begin our analysis with the relevant constitutional text. Article III, Section

9 (“Section 9”) of the Delaware Constitution unequivocally grants the Governor “the

power 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.”19 Section 9 is silent, however, as to how the appointment

process starts. Even so, the plain language of Section 9 signals that an appointment

cannot occur until the Senate has given its consent. In the case of the DSPC board

18 Opening Br. in Support of the Position of the General Assembly at 3. 19 Del. Const. art. III, § 9.

9 The Honorable Matthew Meyer The Honorable David P. Sokola The Honorable Melissa Minor-Brown March 7, 2025

of directors, Governor Hall-Long started the process by sending letters to the Senate

“nominating for the consideration of the Senate” the names of five Delaware citizens

“to appoint to the Board of Directors of the Diamond State Port Corporation . . . .”20

Our textual analysis confirms that Governor Hall-Long’s letters were not fully

consummated appointments of the named nominees but were merely the first step in

the appointment process. Section 9 provides that the appointment is made “by and

with” the Senate’s consent, and it is undisputed that the Governor’s nomination

letters were not executed and delivered “by and with” such consent. The letters are,

as they plainly state, nominations and not appointments.

Admittedly, Section 9 does not explicitly state that the Governor must first

“nominate” an individual to the Senate. But the suggestion that the absence of any

language in Section 9 calling for the Governor to start the appointment process by a

nomination prohibits the Governor from doing so is an unsupported leap in

constitutional logic; it runs head-on into the venerable constitutional principle that,

when a power is expressly granted to a branch of government, the grant carries with

20 J.A. to Opening Brs. at A55–59.

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it the power to employ means appropriate to accomplishing the constitutional task

for which the power is expressly granted.21

The Constitutional Debates, moreover, show that the delegates intended the

appointment process to begin with a nomination from the Governor. For instance,

one delegate explained “that certain officers in this State, before they shall be

qualified to exercise the duties of the office for which they have been nominated by

the Governor, shall be confirmed by the Senate.”22 A different delegate stated that

it was the Governor’s “duty . . . to nominate and the Senate to confirm the

appointment.”23 Throughout the debates, the delegates referred to a “nomination”

21 See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”). It might be argued that McCulloch was decided under Article I, Section 8, Clause 18—the “Necessary and Proper Clause”—of the United States Constitution and that the absence of such a clause in our state constitution renders McCulloch’s reasoning inapt. But in our opinion the principle articulated by Chief Justice Marshall—at least as it relates to the question we must answer—does not hinge exclusively on the Necessary and Proper Clause. In Chief Justice Marshall’s words, the principle that when “the government . . . has a right to do an act, and has imposed on it [] the duty of performing that act, [it] must, according to the dictates of reason, be allowed to select the means.” Id. at 409–10 (emphasis added). Likewise here—the dictates of reason support our conclusion that the Governor is authorized to initiate the appointment process by nomination. 22 See 3 Charles G. Guyer & Edmond C. Hardesty, Debates and Proceedings of the Constitutional Convention of the State of Delaware 2070 (1958) [hereinafter “Debates”] (emphasis added). 23 Id. at 1902 (emphasis added).

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as the first step in the appointment process.24 And this Court has interpreted the

Delaware appointment process to begin with a nomination by the Governor.25

Just as the text of Section 9 does not foreclose the Governor’s initiation of the

appointment process by nomination, it does not prohibit the Governor from

withdrawing a nomination before Senate confirmation. We are unanimously of the

opinion that nominations, such as those from which the current controversy has

arisen, that the Senate has not consented to, are subject to withdrawal by the

Governor. Indeed, it was undisputed that, if we were to conclude that Governor

Hall-Long’s letters on January 16 were nominations rather than appointments, then

the sitting Governor would have a “withdrawal right because there is not yet an

24 See, e.g., id. at 2081 (“If any check is introduced upon the appointing power of the Governor, it certainly is desirable that in that Senate which is to pass upon the Governor’s nominations . . . .) (emphasis added); id. at 1922 (noting that the Governor would “have to nominate” the Secretary of State) (emphasis added); id. at 2054 (noting that some senators might “simply say to the Governor, ‘We want that office, and if you don’t give it to us we will not confirm any man that you nominate.’”) (emphasis added); 2 id. at 1303 (debating what percentage of the Senate should be required to consent to officers “nominated by the Governor of this State”) (emphasis added); 4 id. at 2759 (discussing what percentage of the Senate should be required to confirm the Governor’s “nomination” of judges) (emphasis added). 25 See, e.g, State, ex rel. Oberly v. Troise, 526 A.2d 898, 899 (Del. 1987) (“This case presents the question whether the Senate’s prolonged failure to act on gubernatorial nominations is to be deemed constructive consent thereto, thereby constitutionally authorizing the Governor to issue valid full-term commissions to his nominees.”) (emphasis added); State, ex rel. Gebelein v. Killen, 454 A.2d 737, 739 (Del. 1982).

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appointment.”26 To conclude otherwise would significantly impair the Governor’s

ability to exercise the express appointment power.

Our interpretation of Section 9 is consistent with the United States Supreme

Court’s interpretation of the United States Constitution’s Appointments Clause.

When the Delaware Constitution was revised in 1897, it was well known that the

appointment process under the United States Constitution entailed a three-step

process: (1) the President nominates a candidate, (2) the Senate confirms the

nominee, and (3) the President appoints the nominee.27 Nearly a century before the

Delaware Constitutional Convention of 1897, the United States Supreme Court held

in Marbury v. Madison that the President continued to have discretion over

appointments even after those appointments were confirmed by the Senate.28

According to the Court, the President retained discretion over the appointment

process until the “last act” required for appointment was performed, which occurred

when the President signed a commission and officially appointed the officer.29 It

follows that, because the President of the United States has broad discretion over

26 Video of Oral Argument, Delaware Supreme Court, at 27:43–28:30 (Feb. 26, 2025), https://vimeo.com/1060553268. 27 See Dysart v. United States, 369 F.3d 1303, 1311 (Fed. Cir. 2004) (citing Marbury v. Madison, 5 U.S. 137, 155–56 (1803)). 28 5 U.S. 137 (1803). 29 Id. at 157–58.

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appointments even after Senate confirmation, the President has the discretion to

withdraw a nomination at any time until the last act in the appointment process. Such

withdrawals are a common practice in the United States government.30

The General Assembly insists that the drafters of the Delaware Constitution

intentionally deviated from the language in the Appointments Clause. That

argument, however, finds no support in the Debates. In fact, one of the Delegates

commented that the revision requiring the Governor’s Secretary of State to be

appointed by and with the consent of the Senate, would bring the Delaware

appointment process “in [to] conformity with the provision of the Constitution of the

United States . . . .”31 Despite a slight variation between Section 9 and the

Appointments Clause, we discern no substantive difference in how those provisions

operate.

Our opinion is supported by the weight of authority from the courts of our

sister states. The California Supreme Court, for example, determined that the

30 The President of the United States has withdrawn four nominations in the present Congress. Nominations Withdrawn, United States Senate (119th Congress) (Last accessed Mar. 6, 2025), https://www.senate.gov/legislative/nom_wdr.htmdrawn. During the previous Congress, the President of the United States withdrew at least 15 nominations. See Nominations Withdrawn, United States Senate (118th Congress) (Last accessed Mar. 6, 2025), https://web.archive.org/web/20241107195646/https://www.senate.gov/legislative/nom_wdr.htm. 31 See 4 Debates at 2724. The constitutional provision concerning the Governor’s power to appoint a Secretary of State, Article III, Section 10, employs the identical “appoint, by and with consent” language as Article III, Section 9. Del. Const. art. III, § 10.

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governor could withdraw a judicial nomination before confirmation because, until

confirmation, the appointment process is not complete and does not confer the

interim right to assume office.32 California’s highest court noted that “the general

rule in other states is that ‘where the nomination must be confirmed before the officer

can take the office or exercise any of its functions, the power of removal is not

involved and nominations may be changed at the will of the executive until title to

the office is vested.’”33

Likewise, the South Dakota Supreme Court found that the governor could

withdraw a nomination before senate confirmation.34 There, the defendant argued

that the governor did not have the power to withdraw his nomination because the

action was deemed an “appointment” rather than a “nomination.”35 The South

32 In re Governorship, 603 P.2d 1357, 1365 (Cal. 1979). 33 Id. (quoting McChesney v. Sampson, 23 S.W.2d 584, 586–87 (Ky. 1930)). See also McBride v. Osborn, 127 P.2d 134, 137 (Ariz. 1942) (finding that the governor could, “for any reason he thought proper[,] change his mind and withdraw [the nominee’s] name from the consideration of the senate any time before that body completed the appointment and made it final and effective by approving it.”); State ex rel. Todd v. Essling, 128 N.W.2d 307, 312 (Minn. 1964) (noting that “in cases where the appointment process is initiated by a nomination, with no power vesting in the appointee to exercise the functions of the office until confirmation, the rule laid down in the Marbury case has no application until the senate confirms and the appointing authority issues a commission to the officer.”); In re Advisory Opinion to the Governor, 247 So.2d 428, 433 (Fla. 1971) (finding that “[u]pon [the Governor] recalling any of the appointments the confirmation jurisdiction of the Senate ceases and that body is under a lawful obligation to return them to [the Governor].”). 34 Burke v. Schmidt, 191 N.W.2d 281 (S.D. 1971). 35 Id. at 284.

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Dakota Supreme Court summarily rejected this argument, finding that it “do[es] not

believe the nomenclature used ought to be that test, but rather whether the action of

the executive is final and complete and places the appointee in office without further

action.”36

The General Assembly has called to our attention two cases from other

jurisdictions that have concluded that the Governor was not permitted to withdraw

nominations—Barrett v. Duff37 and McChesney v. Sampson.38 These cases,

however, are readily distinguished. In both cases, the Governors’ nominations were

more akin to appointments because the nominees had already begun acting with the

authority of their respective offices before senate confirmation, as permitted under

Kansas and Kentucky law, respectively.39 The Kentucky Court of Appeals40 even

noted that in states, like Delaware, “where the nomination must be confirmed before

the officer can take the office or exercise any of its functions, the power of removal

36 Id. 37 217 P. 918 (Kan. 1923). 38 23 S.W.2d 584 (Ky. 1930). 39 See Barrett, 217 P.2d at 919 (noting that the individuals in question had already “duly entered upon the duties” of their respective offices). McChesney, 23 S.W.2d at 587 (“But under our system the appointee of the Governor takes the office, enters upon the performance of its duties, and is charged with responsibility. He holds then subject alone to the action of the Senate. His status is not that of a nominee awaiting confirmation, but that of an officer invested with the powers, privileges, and responsibilities of the position until the Senate acts.”). 40 Before 1976, the Kentucky Court of Appeals was the highest court in the State of Kentucky.

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is not involved and nominations may be changed at the will of the executive until

title to the office is vested,” but that “under [its] system the appointee of the

Governor takes the office, enters upon the performance of its duties, and is charged

with responsibility.”41

Nor do we believe that separation-of-powers considerations dictate a different

conclusion. To the contrary, we understand the drafters of the Constitution of 1897

to have placed the appointment power in the executive branch; situating the power

in Article III—the article establishing our State’s executive branch—is evidence of

that. And Section 1 of Article III vests “[t]he supreme executive powers of the State”

in the Governor. Simply put, under our Constitution, the appointment of officers

identified in Section 9 is an executive function. The Senate, to be sure, provides a

check through its consent authority on the Governor’s faithful and diligent exercise

of that function. But that check does not transfer the appointment power to the

Senate upon the Governor’s submission of a nomination as a precursor to

appointment.42 Concluding otherwise, in our opinion, would frustrate the drafters’

41 McChesney, 23 S.W.2d at 587. 42 The United States Supreme Court has applied this principle when interpreting the United States Constitution. See Myers v. United States, 272 U.S. 52, 118 (1926) (“The requirement . . . that the Senate should advise and consent to the presidential appointments, was to be strictly construed. The words . . . , following the general grant of executive power . . . [,] were limitations upon the general grant of the executive power, and as such, being limitations, should not be enlarged beyond the words used.”).

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allocation of the executive branch’s and the legislative branch’s respective roles in

the appointment process.

In sum, we are persuaded that the weight of authority from our sister states

and the federal Appointments Clause and separation-of-powers considerations

support our text-driven opinion: The Delaware Constitution, including Article III,

Section 9, permits Governor Meyer to withdraw the previous Governor’s

nominations to the DSPC Board before Senate confirmation.

/s/ Collins J. Seitz, Jr. Chief Justice Collins J. Seitz, Jr.

/s/ Karen L. Valihura Justice Karen L. Valihura

/s/ Gary F. Traynor Justice Gary F. Traynor

/s/ Abigail M. LeGrow Justice Abigail M. LeGrow

/s/ N. Christopher Griffiths Justice N. Christopher Griffiths