July 14, 2003

Dear Chief Justice Veasey:

In the time I have been Attorney General, I have shared a very cordial and professional relationship with you and other members of the Court. Your recent correspondence strains that relationship. You have breached a courtesy I have extended to you, misled others about the courtesy, and addressed matters with my staff more appropriately addressed with me.

First, your letter to Steve Wood implies that the fact that this office did not share with you the legislation in response to Judge Babiarz’s decision in Garden prior to its introduction was solely his responsibility. It was not. Ultimately the responsibility of communicating about important matters with the Court is mine. While Mr. Wood is aware of my policy, as a matter of courtesy, to provide the Court a copy of our legislation proposals that might impact the Court, I was aware of this legislation and did not ensure it was sent. Steve was generous in his letter of apology on behalf of this office, and your response was wholly inconsistent with the notions of civility you purport to advance, as was your decision to disseminate his letter.

Second, in my tenure, 1 have met with you regularly, and, consistently in our discussions, you have indicated that your only concern with regard to my legislative proposals is that you have an opportunity to advise if you believe there are fiscal or personnel impacts that might affect the Court’s operations. You have consistently indicated you have no intent to, or interest in, interfering with the political or legislative process. Given that standard, I am not even sure the legislation in question falls within the purview of the courtesy I have extended.

Even so, your implication, that you have ever, in any way, reviewed my legislative proposals for any other purpose is not accurate, and is misleading. I have proposed literally dozens of changes to the criminal code that have never been sent to your attention because they do not implicate the courts’ resources, and you have never suggested that to be a breach of protocol or policy. In this particular case, however, it is questionable that you should even suggest we would have had any discussion, as there was a matter pending before the Court related to the legislation, and to do so would have violated ethical requirements.

Your comments about the process by which the legislation was drafted must be placed in proper context. Our decision to proceed with the legislation was actually a response to Judge Babiarz’s sentencing opinion on remand in State v. Garden in May. The decision reads in pertinent part, as follows:

“It is the Court’s opinion that the Garden decision does not correctly state the law of Delaware. . . . Where the Delaware Supreme Court has incorrectly interpreted a statute, it falls to the legislature to correct judicial misinterpretation and clarify legislative intent.”

This language, which is quoted in the synopsis to H.B. 287, led us to discussions with the General Assembly, and, subsequently, to begin the process of drafting the bill. I am not sure which sections of the synopsis you deem to be “misleading and intemperate,” but the synopsis either restates or extensively quotes from Judge Babiarz’s sentencing opinion on remand. Your characterization, therefore, is troubling, because, while your correspondence carefully refers to the synopsis as such, there are substantial references in that synopsis to an opinion in a matter presently pending on appeal before the Court.

In light of the Court’s recognition that it is the sole province of the General Assembly to pass, and the Governor to sign, such laws as they see fit, I will refrain from commenting on the unprecedented extent to which your letter has injected the Court into the policy considerations of the legislative process or on the thinly veiled solicitation from the Governor for a request for an advisory opinion, in derogation of commonly understood notions of separation of powers. I am concerned, however, that the Garden matter get a fair consideration from the Court, and would hope that you recognize that the Court’s action has created the perception that that goal may have been placed in jeopardy.

I regret the necessity of this letter. I trust we can return to and continue the cordial and professional relationship we have enjoyed.

Sincerely,

 M. Jane Brady

Attorney General

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