July 11, 2003
Dear Governor Minner:
The Justices each
acknowledge receipt of your letter of July 10, 2003, In which you
have requested their opinions in writing on the following question:
“Whether the provisions of
House.Bill No. 287 are valid under the Constitution of the United
States and the Constitution of the State of Delaware, either
generally or specifically as applied 'to all defendants tried,
re-tried, sentenced or re-sentenced after its effective date.'”
As you state in your letter,
this request is made in accordance with the provisions of Title 10,
Section 141(a) of the Delaware Code, which provides, in pertinent
part, as follows:
“The Justices of the Supreme
Court, whenever the Governor of this State . . . require it for
public information., or to enable [her] to discharge [her] duties
may give . . . their opinions in writing, touching the proper
construction of any provision in the Constitution of this State, or
of the United States, or the constitutionality of any law or
legislation passed by the General Assembly.”
You also cite Title 29,
Section 2102 of the Delaware Code, to the same effect.
Preliminarily, we should put
in perspective the authority provided in these statutes for the
Governor or the General Assembly to seek the opinions of the
Justices on constitutionality, and the discretion provided to the
Justices to express their opinions in response. Such opinions are
the individual, personal views of the individual justices; as such,
they are not the opinions of the Supreme Court itself and they are
not binding precedent in any case that may later come before the
Supreme Court. Nevertheless, the opinions of the justices may be
very relevant to one or more of the litigants in any later court
proceeding.
As you note in your letter,
House Bill No. 287 has passed both houses of the General Assembly
and has been presented to you pursuant to Article III of the
Delaware Constitution. You have further noted that if you do not act
(to sign or veto) this Bill, it will become law without your
signature on July 15, 2003. Your concern, very aptly expressed, to
the public interest that,
“The constitutionality of
this Bill be promptly and authoritatively addressed, so that the
State (including its jurors, prosecutors and judicial officers) can
avoid the very substantial cost of retrying and re-litigating costly
death penalty matters in the event that some portion of this measure
is later determined to be invalid.”
You have noted that the
operative provisions, Sections 1 and 2 of the Bill, would amend the
death penalty statute concerning procedures pursuant to which a
Court may sentence a defendant to death over a contrary vote of a
jury. As you have also noted, Section 4 of the Bill “shall apply to
all defendants tried, re-tried, sentenced or re-sentenced after its
effective date.” You have further noted that the Bill does not
contain a “severability clause,” which would have declared that its
provisions are severable in the event that any provision of the Bill
is determined to be invalid. Your inquiry, as we see it in context,
reflects the correct recognition that the death penalty statutes
require delicate analysis and careful drafting of interrelated
provisions in light of the matrix of federal and state
jurisprudence.
The Justices understand your
request to raise the following two issues: First, are any of the
provisions of the Bill unconstitutional on their face? Second, do
any of the provisions, including Section 4, create the potential
that the Bill may be unconstitutional as applied in specific cases?
Therefore, keeping in mind
the limited and special role of opinions of the Justices rendered
pursuant to these statutes, the Justices are unanimous in expressing
jointly their opinions on these questions, as follows:
First, in our opinion, none
of the provisions of House Bill No. 287 is unconstitutional on its
face, at least to the extent that they operate prospectively to
defendants who crimes are committed after the statute is enacted.
Second, whether or not any of the provisions set forth in Sections
1, 2 or 4 may be deemed to have been unconstitutionally applied
retrospectively or sought to be applied to a particular defendant in
a particular case may be determined only on a case-by-case basis.
Therefore, we are unable to
express any opinion on the second question because a lawyer in a
particular case, representing a defendant sentenced to death or in
jeopardy of receiving a death sentence, is expected to raise in good
faith any tactically appropriate, non-frivolous argument. Such an
argument may include issues of statutory interpretation or
constitutionality as applied to that defendant under the
circumstances of the particular case. This is the essence of our
adversary system and invokes the role of the independent judiciary
to render a reasoned decision in the case. It is the exclusive
province of the legislative branch to pass, and the Governor to
sign, such laws as they see fit. The role of the courts is centered
on litigation that may come later, raising interpretation and
constitutional issues for decision. It is then that the Courts are
free to speak on the merits of the arguments presented to them.
Thus, at this stage—as
distinct from the formative stage in the legislative drafting
process—it would be inappropriate for us to suggest specific,
potentially problematic legal or constitutional issues that counsel
in a particular case might raise, based on the provisions of this
Bill or the characterization of those provisions in the synopsis.
Moreover, any such suggestions by the Justices at this juncture
would be particularly inappropriate because there is currently
pending in this Court an appeal from the death sentence imposed by
the Superior Court on remand in the Garden case, which is the very
case that is discussed at length in the synopsis to House Bill No.
287. That appeal has not been briefed or argued before the Supreme
Court. In fact, the opening brief is not due until July 31, 2003.
We trust that our response
is timely and helpful to the limited extent that we are able to
answer your inquiry. We have made every effort to respond to your
letter well in advance of the July 15, 2003 date noted in your
letter, in order to give you adequate time to fulfill your
constitutional responsibilities.
We conclude with two
administrative matters in connection with this response to your
inquiry. First, under Supreme Court Rule 44(c) this response will
not be released publicly by us. Such release is solely your
prerogative, for the five-day period set forth in the Rule. Second,
in keeping with the individual nature of opinions of the Justices as
mentioned above, each of us has personally signed this joint
opinion. Justice Steele is out of state and, therefore, it is
impracticable on such short notice to secure his manual signature.
As a result, he has authorized the Chief Justice to sign for him.
Please let us know if we can
be of any further assistance.
Respectfully,
E. Norman Veasey
Randy J. Holland
Carolyn Berger
Myron T. Steele
Jack B. Jacobs
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