Posted: June 27, 2008
HOW BERNARD PEPUKAYI'S NOMINATION WAS SAVED
By Celia Cohen
Bernard Pepukayi's nomination was in jeopardy. His fitness to be a Family Court commissioner was in dispute because of a teen-age crime he had put behind himself -- literally half-a-lifetime ago.
Pepukayi got through, but not before he undoubtedly became the only junior judicial officer in the Delaware court system to need all three branches of government to be confirmed.
So much for what should have been an obscure appointment to a four-year term handling routine matters in the Family Court, which deals with divorce proceedings and juvenile delinquency.
Instead, it mushroomed into a legal thriller driven by the governor and the state Supreme Court.
To be sure, there were political overtones from the start. Pepukayi spent the last four years as the deputy legal counsel to Gov. Ruth Ann Minner, a Democrat whose powers of appointment were dwindling day by day with her second term running out and the General Assembly set to end its session on June 30.
If Minner wanted to make Pepukayi a commissioner, it really was now or never.
Pepukayi, 35, of Middletown, has been a lawyer since 1999. He was a deputy attorney general assigned to Family Court cases before he worked for the governor, and he has a law degree from the University of Iowa and a college degree from Clark Atlanta University.
He also had a criminal record. As a 17-year-old in the summer of 1990 before his senior year in high school, he sold cocaine to undercover officers when he was known as Bernard Howard. They did not arrest him until December 1990, after he turned 18, so he was tried as an adult in the Superior Court. The judge gave him probation.
Pepukayi was expelled from school, but he got himself a high school equivalency degree and went to college and law school. When he applied for a pardon in 1998 so he could take the bar exam, he told the Board of Pardons he sold cocaine because he had no family support and needed money for clothes and other necessities and was not a drug user himself. He got his pardon.
Pepukayi also changed his name in 1997, he said to reflect his African-American heritage. His new name is Swahili for "we are awake."
Minner was acquainted with Pepukayi's story. As the lieutenant governor in 1998, she presided when he appeared before the Board of Pardons, and she cast one of the five unanimous votes in his favor, leading to the pardon from Gov. Tom Carper, now a Democratic senator.
Deputy counsel or not, Pepukayi still had to apply for the court post through the Judicial Nominating Commission, which screens candidates and forwards its recommendations to the governor. It was not a surprise that Pepukayi made the cut. The commission was appointed by Minner, after all.
The governor announced Pepukayi's nomination, subject to Senate confirmation, on Friday, June 13. For everyone ever appointed, however, there are others disappointed they were not, and they have sympathizers.
It did not take long for there to be grumbling about Pepukayi in legal and political circles, and the objections gathered more force than usual as they took hold in a constitutional question about his fitness to become a court commissioner.
The state constitution bars from office anyone convicted of bribery, perjury, embezzlement of public money "or other infamous crime."
There is no leniency in it. Candidates running for office have been thrown off ballots by court decisions ruling that character is a requirement for public officials and its lapse cannot be cured by a pardon or a lifetime of good works.
Bill Bush, the legal counsel to the governor, was convinced the constitutional provision did not disqualify Pepukayi, or else the Judicial Nominating Commission, which has lawyers on it, would not have approved him.
Still, this was no time to take chances. With the clock running, Bush decided the question should be put to the Supreme Court to resolve as the arbiter of constitutional matters. Last Friday, a week after Pepukayi's nomination was announced and 10 days before the legislative session was to end, Minner asked the state's highest court for an advisory opinion. Quickly.
"As the nominee must be confirmed with the consent of the majority of the Senate and the second session of the 144th General Assembly adjourns on June 30, 2008, I respectfully request an expedited opinion," Minner wrote.
Shortly afterwards, the telephone rang in the offices of Potter Anderson & Corroon and Young Conaway Stargatt & Taylor, two of the state's most prominent law firms.
Justice Randy Holland was calling. He asked if the firms would write briefs arguing the issue, with Young Conaway assigned to take the position that Pepukayi could hold office and Potter Anderson that he could not.
It was already mid-afternoon on Friday. The briefs were due by Monday at 11 a.m.
Lawyers call this sort of work pro bono publico, Latin meaning "for the public good." It is a mark of distinction to be asked by the Supreme Court, but it is also disruptive and a lot of hard work, not to mention that it is done free of charge. In this instance, it also meant sacrificing a summer weekend.
Potter Anderson put together a working group with Donald Wolfe, a senior partner, along with Timothy Dudderar, Meghan Dougherty and Jaime White. Young Conaway turned to Richard Morse as the senior partner with Kristen Salvatore DePalma and Andrew Lundgren, who had clerked for the Supreme Court.
"It's not something that anybody from the bar would turn down. I'm sure everybody had other plans that got moved around," Wolfe said.
Meanwhile, the Supreme Court's five justices had to sort themselves out, too. As is so typical is a state as small as Delaware, there were conflicts.
Justice Henry duPont Ridgely disqualified himself because Pepukayi had been his law clerk when he was the Superior Court's president judge. "I must recuse myself because my impartiality in this matter might reasonably be questioned," Ridgely wrote in a letter to the governor.
Holland thought at first he could participate, only to discover that in 1992 he had been part of a three-justice panel that upheld the conviction of then-Bernard Howard, so he dropped out, too.
It left Chief Justice Myron Steele, Justice Carolyn Berger and Justice Jack Jacobs to provide an advisory opinion, which they did Tuesday. They concluded Pepukayi was eligible to hold office because an offense committed as a juvenile, even if tried as an adult, did not rise to the definition of an infamous crime.
"To us, it seems plain that the appropriate focus must be upon Pepukayi's minority at the time of his infractions and the General Assembly's clear legislative scheme to have the infractions Pepukayi committed while a minor, treated as civil acts of delinquency, not crimes at all, let alone 'infamous' crimes," the justices wrote.
If three Supreme Court justices thought Pepukayi was suitable for the judiciary branch, it was fine with the executive and legislative branches. A day after the advisory opinion, Pepukayi's appointment sailed to confirmation.
Pepukayi expects to arrive on the Family Court in late July or early August. Before he does, he is going to take a vacation.