Posted: May 30, 2008
By Celia Cohen
There is an open secret in Legislative Hall that state Rep. Bob Valihura would not mind switching branches of government to become a judge.
Valihura, a Republican lawyer from Brandywine Hundred, has joined an eager queue of applicants to replace Judge Susan Del Pesco, who is bringing 20 years on the Superior Court to a close this week and retiring.
For any judicial candidate, the path to the bench is narrow and perilous -- something on the order of being squeezed through a cone. Every step of the way is not only competitive, but a little chancy.
The applications are culled by the Judicial Nominating Commission, which sends its recommendations, usually three or four people, to Gov. Ruth Ann Minner for her consideration. Minner chooses one and forwards the nomination to the state Senate for confirmation to a 12-year term dealing with the court's busy docket of criminal and civil cases.
The Judicial Nominating Commission is reviewing the candidates now. The names are confidential, and although they usually leak out, not all of them have yet, so there is no way of gauging the odds that Valihura will survive the cut. Nor is there any indication that the selection is wired, for or against Valihura, the way it was the time Jane Brady went from Republican attorney general to judge.
Consistent with the protocol, applicants do not publicly confirm or deny their interest, and Valihura is no different from the rest of them. He did not want to say anything.
Valihura, who is 47, has been a legislator for 10 years and a member of the Delaware bar for 21 with a law degree from the University of Pennsylvania. He downgraded his practice after he was elected, leaving the international firm of Duane Morris, but he still does legal work and also teaches at Widener law school. Judicial temperament could be a question, though, because other legislators regard him as snappish.
Valihura has a special complication -- and it is not his party affiliation. Although the governor and the Senate majority are Democrats, the state courts are required to have political balance. The open judgeship is a Republican seat. If not Valihura, another Republican has to be appointed.
Nor is it the control of the state House of Representatives. Valihura's exit would put his district with its Democratic-leaning registration in play at a time when the Democrats need only two seats to take over. As if politics would play a role in judgeships, perish the thought.
No, this complication is really serious. It is the state constitution.
There is a provision that prohibits legislators from being appointed to offices that were created or granted additional compensation during their terms. The language reads: "No senator or representative shall, during the time for which he or she shall have been elected, be appointed to any civil office under this state which shall have been created, or the emoluments of which shall have been increased during such time."
The reasoning for the prohibition is obvious. It keeps legislators from inventing lavish offices for themselves or grafting fat salaries onto existing ones they could take. (It does not stop legislators from getting run-of-the-mill state jobs, or there would be a lot of them out of work.)
No one knows whether the provision would prevent Valihura from going directly from lawmaker to judge. The last time it came up, there was an end-run around it.
Chuck Welch was a Republican state representative when he was appointed to a newly-created judgeship on the Court of Common Pleas in 2000. After he was confirmed but before he was sworn in, a deputy attorney attorney pointed to the constitution and wondered whether it disqualified Welch.
Lawyers consulted. They decided to finesse it as only lawyers can.
Welch was advised not to start his judgeship until after the November 2000 election, when his House term would be over. (Legislators' terms run from Election Day to Election Day.) He waited, and that was that, but the larger issue hung out there.
"I recall the issue," said Tom McGonigle, who was at the time the chief counsel to Gov. Tom Carper, now a Democratic senator. "While the applicability of the prohibition was less than clear, the safest course was for Judge Welch to take his oath after his term in the House of Representatives. Ultimately the legal question was never fully resolved."
Welch had the option of waiting, but if a new Superior Court judge is to be confirmed before the legislative session ends June 30, Valihura would not. Superior Court judges, unlike Welch's situation with Common Pleas eight years ago, have 30 days under the state constitution to start their terms or they are forfeit.
Nearly a century ago, the question cropped up for the federal government, where there is identical language in the U.S. Constitution. President William Howard Taft wanted to appoint Sen. Philander Chase Knox as secretary of state, but the salary for the office just had been increased, according to an account by Edward S. Corwin, a constitutional scholar.
The solution in 1909 was another end-run. The Congress obligingly rolled back the salary, and Knox went into the Cabinet.
Politicians are nothing if not creative. If the governor and the Senate were to decide they want Valihura on the bench, no doubt they would figure something out, as they did with Welch. For example, they could leave the court short-handed, not confirming Valihura until close to the election, but whatever they do, they cannot ignore the matter.
"The issue is front and center. It's untested. The one time it's arisen in modern times, deference was paid to it," said Dave Swayze, who was counsel to Gov. Pete du Pont in the 1970s and once was Valihura's law partner.
The irony is, Valihura came excruciatingly close to skirting the constitutional quandary altogether. The only recent raise for Superior Court judges was granted in the state budget in 2007, and it was a token pop of $750 a year -- pushing their salaries from $168,100 to $168,850.
Not only that, but Valihura voted "no" when the House approved the budget, 39-2. Apparently it was not clairvoyance. He simply thought the budget should be trimmed.
No pay hike, no constitutional trigger. There but for $750, this legal dilemma could have been kicked into the future, where lawyers and legislators like their predicaments to be.