A divided court in more ways than one: the Supreme Court of Delaware and its distinctive model for judicial efficacy, 1997-2003.
I. INTRODUCTION
In recent years, the nation's focus on judicial affairs tends to concentrate on the most identifiable level, namely the Supreme Court of the United States. Most notably within the past year, the Supreme Courts' decisions in Grutter v. Bollinger (1) and Lawrence v. Texas (2)
The nation's state courts of last resort are as distinctive as their respective host states. Internally, a state's highest court can also be considered reflective of the individual judges that make up a quorum on a daily basis. In the current era, defined by what can justifiably be called a perpetually litigious society, state courts continue to preserve distinguishing qualities. By focusing on the high court of one particular state, it is possible to examine court structure, pressing topical issues, and voting patterns among individual judges. As one of the more unique courts of last resort in the country, the Supreme Court of Delaware provides an optimal specimen for analysis. (3)
This high court study examines the separate opinions issued in divided cases by the justices of the Supreme Court of Delaware from 1997-2003. (4) In a closed universe study of a single court, divided cases are the most effective media for insight because they help define the internal roles within the collective. (5) While the primary goal of this study is to identify these roles through statistical analysis of voting trends, the analytical portion of this study devotes additional consideration to several environmental issues including: whether a true majority exists in the court; whether the Supreme Court of Delaware is a reliable model for judicial efficiency or judicial economy; and whether the court's bipartisan composition is at all responsible for apparent efficiencies. These are some of the issues addressed in the forthcoming analysis.
As demonstrated by the discussion in Part II, divided opinions are particularly relevant in Delaware in light of its unique court structure. (6) Part III of this study will outline the methodological process utilized in conducting the relevant statistical research. (7) Part IV introduces sources of division in three topical areas of case law. (8) In Part V, the voting patterns of each justice will be examined in a topical context. (9) Finally, in Part VI, the study will conclude with a summary of pertinent trends and a forecast of future voting behavior. (10)
II. UNIQUE ATTRIBUTES OF THE DELAWARE COURT SYSTEM
In general, separate opinions are considered highly probative of current judicial trends and individual tendencies of the judges who sit on a single state court. (11) A unanimous decision by a court often reflects a compromise rather than an absence of varying opinions on an issue. (12) A divided decision, on the other hand, typically enunciates "'a statement by the judge as an individual'" (13) symbolic of unique individual beliefs and attributes. (14)
While separate opinions benefit an analysis of any jurisdiction, they are particularly relevant to a study of the Supreme Court of Delaware because that court rarely issues non-unanimous opinions. (15) For example, in 1995, the Supreme Court of California issued multiple opinions in over seventy percent of its cases, and the Supreme Court of Indiana stood divided in approximately thirty-five percent of its decisions. (16) In contrast, throughout the fifty-year history of the Supreme Court of Delaware, its justices have written separate opinions at an average of three percent of each year's reported cases--this translates to less than one percent of the entire year's docket. (17)
This sensation--dubbed Delaware's "unanimity norm" (18)--is thought to be based on a variety of factors, including: the small size of the state and of the Supreme Court of Delaware's bench; Delaware's judicial appointment system; the Supreme Court of Delaware's mandatory jurisdiction; and the court's unique internal operating procedures. (19)
With respect to court size, the court is comprised of one Chief Justice and four Justices, all of whom are nominated by the governor and confirmed by the state senate. (20) The court's five justices sit both in panels or en banc: the effect of the structure of Delaware's judicial system is that, unlike larger courts--which have all cases en banc--most cases are initially heard in three-member panels, thus decreasing the chance of divided decisions. (21)
The second consideration is Delaware's system for judicial selection. Forty-eight states label their highest court "supreme court," but many states differ with respect to procedures for filling the bench. (22) Six states utilize "partisan elections," fifteen states choose "nonpartisan elections," seventeen states hold "uncontested retention elections" following an initial appointment, and the other twelve states use either life tenure or "reappointment of some type." (23) Delaware is one of the few states placed in the illusory category, "reappointment of some type," and it is even further distinguishable from the norm as the only staggered appointment bipartisan judiciary in the United States. (24) In Delaware, three of the five justices of the Supreme Court must represent one of the major political parties, while the other two must represent the other major political party. (25) Currently, there are three Democratic and two Republican justices on the court. (26) The court's bipartisan composition was introduced in order to "eliminate political influence from the judiciary to the fullest extent possible" by taking elections out of the equation. (27) All justices of the Supreme Court of Delaware are appointed for twelve-year terms. (28)
A third factor that may be contribute to Delaware's so-called "unanimity norm" is the court's mandatory jurisdiction. Delaware's courts are divided by jurisdictional grants and limitations. (29) The Supreme Court has final appellate jurisdiction for criminal cases where the sentence is death, when imprisonment exceeds one month, when a defendant is fined more than one hundred dollars, and in all civil actions from the Court of Chancery, Superior Court, and Family Court. (30) However, since Delaware does not generally have intermediate appellate courts, "the jurisdiction conferred by the Delaware Constitution and enabling statutes effectively requires the Delaware Supreme Court to hear and decide every appeal that is filed from a final judgment entered by the Superior Court, the Family Court, and the Court of Chancery." (31) Therefore, a premium is placed on consistency and unanimity. (32)
The last, and possibly most telling factor is the court's internal operating procedures, which in effect limit the opportunities for regular separate opinions. (33) As previously mentioned, cases are typically heard in three-justice panels. (34) Cases are randomly assigned so that each panel and each justice receive roughly the same caseload. (35) Moreover, the court's procedures for deciding cases and issuing opinions focus largely on cooperation and compromise-which often translates into unanimity. (36) While this highly organized system for disposition of pending matters is impressive and advanced, it also accounts for the scarcity of divided opinions from the court.
In addition to the aforementioned factors, several other issues should be considered when examining the voting trends of the Supreme Court of Delaware. The court is currently in a unique phase in its evolution. First, because of Delaware's bipartisan judiciary, minor changes within the court's membership could potentially alter state law. For example, it is possible that there will be a shift from the court's current Democratic majority in the next few years. During the relevant time period for this study, Justices Steele and Jacobs--both Democrats, replaced retiring Justices Hartnett and Walsh, (37) and Justice Holland was reappointed. (38) Thus, the court's current political makeup consists of three Democrats Justices Berger, Jacobs, and Steele and two Republicans Justices Veasey and Holland. (39) Chief Justice Veasey's impending retirement (40) will not alter the political climate of the court since constitutional requirements prescribe another Republican appointment; however, the expiration of Justice Berger's term in 2006 (41) allows the possibility of a replacement from either party and thus may yield a new Republican majority.
Additionally, a cornerstone of Delaware law involves maintaining predictable and reliable laws and proceedings. (42) This study, therefore, will examine whether such goals have been achieved as the court passes through a "changing of the guard" period. (43)
III. METHODOLOGY
The scope of this study includes all cases in which separate opinions were filed by justices of the Supreme Court of Delaware from 1997-2003. In addition to examining voting patterns of the justices who joined in majority opinions and/or filed separate dissents or concurrences, votes of justices who joined in each separate dissenting and concurring opinion are also analyzed. (44)
In assessing the decisions of Delaware's high court, electronic databases such as Lexis Nexis and Westlaw were utilized to compile selected case law. After performing a thorough preemptory check on the issues pertinent to this study, searches were performed to find all published opinions from the court containing either a dissenting or concurring opinion. From 1997-2003, the Supreme Court of Delaware published twenty-nine divided cases (45) containing a total of thirty-eight separate opinions. (46) Of these opinions, twenty-six were in dissent and the remaining twelve were concurring opinions or statements. (47)
A review of the relevant case law revealed that there were three main topical areas which presented competing viewpoints among justices. Therefore, all cases were categorized into three groups: criminal, civil, and business organizations. The topical data was organized by dissenting and concurring authors and participating voters in order to compile the data shown in Appendix 1. (48)
Within the three topical groups, qualitative and quantitative analyses were used to illustrate broad trends such as: general participation trends among justices for all topics; primary sources of dispute for all areas; relative numbers of separate opinions; the percentages for holdings in favor of the state/prosecution compared to those for individual defendants; (49) the degree to which divided civil cases held in favor of an individual compared to a government actor or different entity; and the number of divided business cases holding for the shareholder or claimant rather than a corporate actor or body. (50)
Once this preliminary data was collected, voting records were assembled for each individual justice. For all cases involved in this study, each of the seven justices discussed were recorded as either voting with the majority of the court, voting with the dissent (differentiating between filing an opinion and joining an opinion), voting with the concurrence (also differentiating between filing and joining), or being in absentia from the proceedings. The net result of this process is demonstrated by the table in Appendix 2. (51)
The voting patterns for each justice were then analyzed both empirically and analytically. (52) In order to ensure accuracy, participation rates in divided opinions were calculated for each topic and each justice rather than total voting rates. The reason is that because of Delaware's court system--using three-justice panels for the initial hearing of cases--some justices were not present for all of the divided proceedings. Therefore, within each topical category, the frequency of a justice's issuance of separate opinions was divided by the number of cases in that grouping which the justice presided over. In some instances, this process was repeated using separate votes--with the majority, dissent, or concurrence--instead of filings to reflect the views of those justices who may have joined in a separate opinion rather than authoring one of their own. These dynamics were then cross-referenced with factors such as the issues causing divisions and whether there were repeated conflicts over certain topics. Additional consideration was given to the internal roles adopted within the court's workings and similarities in views among justices.
Lastly, in concluding the study, several exogenous variables were taken into account including, but not limited to, the remaining length of the justice's term, patterns of block voting--whether based on political, topical, or other affiliations--and diversity amongst justices. (53)
IV. TOPICAL ISSUES WITHIN THE COURT
The purpose of a prototypical high court study is two-fold: First, to identify divided decisions within a defined time period for a particular court; and second, to narrow prospective cases to those "public law" decisions which convey the most information about the individual judges' ideologies and decision making processes. (54) Typical "public law" cases include criminal and civil cases involving personal liberties--these form the foundation of this study. This study, however, adds an additional component to the analysis; Delaware is arguably the stage upon which advancements, changes, and conflicts in the area of business organizations law are watched by the world. For this reason, the analysis to follow takes business-related cases into account as a third type of decision encompassing the notion of "public law."
A. Criminal Cases
In the context of this study, criminal cases produced the most separate opinions--with nine dissenting and six concurring opinions. (55) In fact, every full-time justice from 1997-2003, with the exception of Justice Jacobs, issued a separate opinion in a criminal case. (56) This is not surprising, given the fact that every criminal case implicates a liberty interest and given the broad range of criminal sentences--including the death penalty--which give rise to the court's mandatory jurisdiction over appeals. (57)
Some of the most controversial issues in Delaware's criminal caseload involved searches and seizures, the death penalty and other related sentencing modifications, allocution rights, statutory interpretation, and questions regarding the admissibility of certain pieces of evidence at trial. Of the twelve divided criminal cases from 1997-2003, (58) the court decided in favor of the prosecution in forty-two percent of the cases, and held in favor of the individual defendant in fifty-eight percent of the cases. (59) All four cases involving the death penalty spawned compelling arguments from the minority, but were decided in favor of the prosecution. (60) In criminal cases, Justices Berger and Hartnett--who most frequently parted from the majority--participated in six and five separate opinions respectively. (61)
B. Civil Cases
Delaware case law is no exception to the immense diversity of law covered by civil litigation. The cases examined in this study deal with issues of negligence and torts, contracts, property, insurance, and even disciplinary hearings for the suspension of race horse jockeys. Within the time period of this study, fifteen separate opinions were filed with civil case decisions. (62) Every justice authored at least one separate opinion except for Justices Steele (63) and Jacobs. (64) Justice Berger was involved in the highest number of separate civil opinions. (65)
In the twelve divided civil cases, the court exhibited pro-plaintiff tendencies overall, but rarely found in favor of the individual when the opposing party was a corporation, professional entity, or state actor--whether that person was the defendant or the claimant. (66)
For purposes of this study, the most important civil cases are those involving personal liberties: cases involving or alleging interference with such liberties will receive special attention. (67)
C. Business Organizations Cases
Delaware may be a small state in geographic stature, but it is a global icon with respect to business and corporate law. One of the reasons often given for Delaware's prominence in corporate law is the predictability of its jurisprudence in this area: (68) this means that divided decisions in business organizations cases--which could potentially yield some of the most informative trends--are extremely rare. (69)
From 1997-2003, there were five dissenting opinions filed and two additional dissenting votes. (70) There were also three concurring opinions written. (71) Within these cases, Justice Steele participated in the most separate opinions. (72)
While Delaware's corporate success has been credited to fostering pro-management case law, the trends that appear in this study are quite interesting. Of the divided business law cases, all five produced majority holdings in favor of the claimants or shareholders. (73)
V. INDIVIDUAL VOTING PATTERNS
A. Chief Justice E. Norman Veasey
After over thirty years of legal work in the areas of corporate transactions, litigation, and counseling, E. Norman Veasey was appointed Chief Justice of the Delaware Supreme Court on April 7, 1992. (74) His current term will expire on April 7, 2004. (75)
Based on the results of this study, it can be inferred that Chief Justice Veasey is a balancing force for Delaware's high court because he often represents the interests of the people and the preservation of individual liberties. In criminal cases from 19972003, Chief Justice Veasey only filed one concurring opinion and one dissenting opinion, representing seventeen percent of such divided cases. (76) In both cases, however, Justice Veasey wrote separately in favor of preserving personal liberties--voting pro-individual defendant on each occasion. (77)
In Quarles v. State, Justice Veasey opposed what the majority found to be a valid exercise of police discretion in a search and seizure of the defendants that resulted in a cocaine possession charge. (78) In his dissenting opinion, Chief Justice Veasey argued that the defendants' Fourth Amendment Rights were abused because the "officers' belief ... that ... [the defendants] were attempting to conceal contraband was more an inchoate and unparticularized suspicion or hunch than a fair inference in the light of [the officers'] experience." (79) While the majority found that the "police officers had a sufficient basis upon which to support and initial stop to question Quarles," (80) Justice Veasey argued that "some' suspicion does not equate with 'reasonable suspicion." (81) Justice Veasey was willing to give traveling defendants the beneficial inference that every person has the right to act somewhat uncomfortably when approached by the police. (82) In this due process and Fourth Amendment argument, Justice Veasey valued citizen rights and proportionate limitations on police discretion.
In Bullock v. State, the court confronted a first impression issue pertaining to the application of the plain error rule to unique factual situations. (83) Chief Justice Veasey authored a concurring opinion, part of which emphasized the importance of proper jury instructions. (84) While Veasey admittedly "share[d] the dissent's concern regarding undue expansion of the plain error rule," (85) he stressed the importance of viewing the plain error review as a supplement to the underlying premise that a jury must be given "clear and correct guidance" in the first place. (86) In addressing the sometimes unavoidable conflict between plain error review and a defendant's entitlement to a correct statement of law, Justice Veasey cast his swing vote with the majority out of fairness to the defendant in the situation presented by this case. (87) Veasey found that the confusing jury instructions in this case--which involved a first impression interpretation of complex notions of substantive law, in a serious criminal action--demanded a finding of plain error. (88)
In the context of civil cases, Chief Justice Veasey continued his trend of voting with the majority--joining the majority in ninety-one percent of the cases in which he participated. (89) (Justice Veasey did not file any dissenting opinions in civil cases, (90) but filed a concurring opinion in Cannon v. State,91 a case which was very important in defining the Justices' perception of civil liberties and limitations on state action. In that case, a sharply divided court confronted an eminent domain issue, where the state of Delaware condemned private property for the purpose of creating a wetlands mitigation site. (92) The court essentially held that condemnation by the state of land for wetlands mitigation is permissible if it is "necessary to advance the underlying purpose of construction and maintenance of the State's roadways." (93)
Chief Justice Veasey's concurrence in Cannon reflected an uncharacteristic pro-state vote in a divided case. (94) In this opinion, he emphasized the narrow scope of review facing the court: where there was no fraud, bad faith, or abuse of discretion, the court could not alter the agency's decision. (95) In his view, the trial court did not err in approving DelDOT's decision, since the agency considered several viable alternatives before concluding that the plaintiffs' property was best suited due to its location. (96) If this were instead a narrow criminal issue, voting patterns suggest that Chief Justice Veasey may have cast his swing vote in favor of the individual.
In the realm of corporate law, Chief Justice Veasey arguably retains his characterization as voting in favor of individual freedom from state interference. This depiction, however, is manifested in the context of laissez-faire capitalism, the free flow of transactions, and managerial discretion in decision making, rather than per se individual liberties. Chief Justice Veasey wrote one of his few dissenting opinions in a controversial corporate law case. (97) In Omnicare, Inc. v. NCS Healthcare, Inc., the majority reversed a Court of Chancery decision which granted summary judgment to defendant-directors and majority shareholders--who had entered into a merger agreement on behalf of the financially troubled NCS. The Delaware Supreme Court held the agreement invalid because it failed to include a fiduciary out and did not allow the NCS board to fulfill its fiduciary responsibilities to minority stockholders. (98) In the opening of his dissent, Justice Veasey argued that the seemingly ordinary merger was a unique case, because the facts involved were unlikely to reappear in subsequent cases and because the decision resulted in a "rare 3-2 split" among the Justices.99 Justice Veasey seemed to advocate free transferability of corporate shares where an informed and disinterested board of directors accepted a proposed merger in good faith and in cooperation with controlling shareholders. (100) In attempting to preserve the marketability of corporate shares, Justice Veasey argued that the rule adopted by the majority should not become a per se test for invalidity of a sale of control because many prospective buyers would not submit to such a deal knowing that their completed agreement could be used by other would-be purchasers as a base for proposals. (101)
B. Justice Carolyn Berger
The Honorable Carolyn Berger became a Justice of the Supreme Court of Delaware on July 22, 1994). (102) Prior to her appointment to the Supreme Court, Justice Berger was a Vice Chancellor for the Delaware Court of Chancery from 1984-1994. (103) Her current term on the Supreme Court expires on July 22, 2006. (104) Within the scope of this study, Justice Berger is overwhelmingly the most outspoken member of the court in terms of the frequency with which she issues separate opinions.
Justice Berger's voting record differs substantially from other members of the court. In the context of criminal cases, Justice Berger consistently departed from the majority. In the six dissenting criminal opinions in which she participated, Justice Berger voted for the prosecution in five, or eighty-three percent of the time. (105) In total, Justice Berger voted with the majority twice, once for the prosecution and once for the individual defendant; filed or participated in six dissenting opinions--five of which were in favor of the prosecution (106)--and was not present for four cases. (107) Therefore, out of eight possible cases, Justice Berger voted in favor of the prosecution in seventy-five percent of the cases and for the individual defendant in only twenty-five percent.
Justice Berger's dissenting criminal opinions fall into several subcategories within the broader trend of pro-prosecution voting. The first and most frequent case category supports the preservation of existing judicial precedents, rather than creating new standards and rules or extending current ones. (108) This category overlaps with cases advocating a strict or narrow construction of criminal statutory provisions. (109)
Justice Berger's separate opinions suggest that she is often reluctant to decide a case based on new rules, or based on the enlarged scope of an existing rule. For example, in Taylor I, Justice Berger dissented out of disagreement with the majority's emphasis on a "newly announced timing rule" for admissibility of evidence on prior bad acts and convictions. (110) The dispute was whether evidence of a defendant's prior bad acts can, under certain circumstances, be introduced during the prosecution's case-in-chief. (111) In opposing the majority's holding, Justice Berger argued that the defendant was not unfairly prejudiced and did not deserve a new trial for two reasons: First, because the evidence would have likely been admissible on cross examination, the timing of first disclosure was irrelevant, (112) and second, the criminal justice system cannot survive if jurors are not trusted to isolate the purpose that the evidence is admissible to prove based on limiting instructions. (113)
In Bullock v. State, Justice Berger joined a dissenting opinion authored by Justice Walsh to articulate concern over expanding the applicability of the plain error rule. (114) In comparison to Chief Justice Veasey's views, Justice Berger's dissenting vote suggests that she cautions against undue expansion of the plain error rule, which she only supports use of under rare circumstances, and only when an objection is raised as to specific jury instructions. (115) In the dissenters' view, if the majority's ruling was widely applied, the expansion would render the plain error rule "meaningless" and provide a basis for a defendant's appeal in and of itself. (116) In other words, in joining Justice Walsh's dissent, Justice Berger felt that the plain error rule should only apply to the most "egregious" errors--as opposed to harmless omissions at trial--and was unreasonably expanded in this case. (117)
Justice Berger also voiced disagreement with the majority over statutory interpretation. In Walton v. State, she departed from the majority over the meaning of the phrase "'displays what appears to be a deadly weapon'" in Delaware's first degree robbery statute. (118) The majority reversed the defendant's sentence after the state failed to prove that the defendant objectively manifested possession of a weapon. (119) Justice Berger opined that the majority over-modified the meaning of the "display" element to the point that it would not only conflict with precedent, but prevent prosecutions that were intended by the state legislature. (120) Justice Berger rejected the majority's test in favor of defining the word "display" to mean "'exhibit to the sight or mind.'" (21) Justice Berger asserted that under this standard, the "display" element is satisfied when "the weapon is exhibited to the victim's mind through any of the victim's senses[,]" including the presentation of a written threat. (122) She believed that the majority's definition of "display" would require far too extreme a manifestation to satisfy the requirement, and the court should rely on its prior interpretation of the statute's language to avoid bringing into question a clear and settled line of precedent. (123)
In the second case type, Justice Berger showed a higher willingness to defer to the discretionary powers entrusted to government actors--such as police officers--than was voiced by the majority. (124) In Dorsey v. State, the court was divided on the issue of probable cause for search and seizure under the Delaware Constitution after a defendant was convicted of First Degree Murder, Possession of a Firearm during the Commission of a Felony, and Possession of a Firearm by a Person Prohibited. (125) The main source of contention stems from the question of whether there was the requisite probable cause to issue a warrant for the search of the defendant's property. (126) The majority reversed the defendant's conviction for Possession of a Firearm by a Person Prohibited after concluding that the trial court's inference that the police thought the defendant was a criminal suspect did not amount to probable cause.127 The majority premised its pro-individual decision on Delaware's constitutional exclusionary rule, which protects against unconstitutional invasions of privacy in that it "'acts as a remedy for a violation of a defendant's right to be free of illegal searches and seizures.'" (128) Justice Berger argued that the Delaware Constitution inherently should include a "good faith exception" to the exclusionary rule. (129) The effect of such an exception would be that "evidence obtained with a search warrant that is later held to be invalid will not be suppressed as long as the police officer '[acted] with objective good faith ... obtained a search warrant from a judge ... and acted within its scope.'" (130) Justice Berger addressed possible abuses, and concluded that so long as a police officer believes herself to be acting in good faith and within constitutional bounds, the search and seizure should be upheld so as to deter future wrongdoing. (131)
The one exception to Justice Berger's pro-prosecution voting trend in divided criminal cases is illustrated by her dissenting opinion in Shelton v. State, which she co-authored with Justice Hartnett. (132) While the majority of Justice Berger's dissenting opinions argue favorably for the prosecution, she dissented in Shelton to condemn the minimal emphasis placed on a defendant's allocution rights by the majority. (133) In Shelton, the majority affirmed the defendant's murder conviction and death penalty sentence after concluding, among other things, that the trial judge's limiting instruction on the defendant's allocution at the penalty hearing did not materially prejudice his case. (134) In essence, Justice Berger's pro-defendant stance in this case was premised on the belief that "[a] defendant facing the death penalty should be allowed to plead for his life in whatever way he chooses, restricted only by issues of undue length, relevance, and courtroom demeanor." (135) Regardless of the strategy employed by the defendant, Justice Berger points out that the defendant "wanted to convince the jury and judge that he should be sentenced to life, instead of death," and his only way to do so was through allocution. (136) According to Justice Berger, denying this defendant his right to unbridled allocution was unconstitutional on both the federal and state levels; especially since the defendant was a pro se litigant in a death penalty case. (137)
In divided civil cases, Justice Berger was clearly the most frequent dissenter. In the eleven civil cases in which she participated, Justice Berger voted with the majority in only four cases (thirty-six percent), and participated in seven dissenting opinions (sixty-four percent), six of which she authored. (138) Justice Berger's voting trends in civil cases were largely consistent with the sub-categories identified in criminal cases above. In Cannon v. State, for example, Justice Berger voted with the majority, thus condoning the taking of the plaintiffs' private property for wetlands mitigation and the highway project as reasonable and necessary. (139)
However, some of Justice Berger's other separate civil opinions show quite an opposite, pro-claimant trend. The first group of such opinions took issue with statutory construction, where Justice Berger in one opinion favored a reading that found support in legislative history, (140) and in a second opinion favored a reading that looked to the statute's plain meaning. (141) In Meekins v. Barnes, the court divided over interpreting Delaware's medical negligence statute. (142) Delaware Code section 6856 states that the statute of limitations begins to run on the "date upon which such injury occurred." (143) While the majority interpreted that provision as saying "the date on which the wrongful act or omission occurred[,]" Justice Berger read the "plain meaning" to convey "the date on which the negligent act caused harm (whether known or unknown)." (144) In this pro-plaintiff dissent, Justice Berger claims that the court's narrow interpretation in effect decreased the claimant's statute of limitations simply because she was "'blamelessly ignorant,'" thus leaving a cancer victim with no legal recourse for an illness that may have been curable. (145)
In another set of pro-individual rights dissents, Justice Berger argued that the court gave minimal deferential value to factual findings by Delaware's trial courts. (146) In Shepherd v. Clemens, Justice Berger dissented when the court terminated parental rights over the child at issue, so that the petitioning grandparents could adopt him. (147) Justice Berger felt that Delaware's specialized Family Courts are entrusted to deal with the issues in this case, not the Supreme Court. (148) In addition, Justice Berger argued that the biological father already served his criminal sentence for wrongful sexual acts and therefore did not deserve to have his constitutionally protected parenting rights erased as additional punishment. (149)
In the context of business organizations cases, Justice Berger dissented in one of the four divided decisions in which she participated. (150) As evidenced by Justice Steele's voting pattern, it appears as though former Chancery judges are more likely to deviate from the majority when it comes to business-oriented issues. (151) In Kahn v. Tremont Corp., Justice Berger filed a dissenting opinion which followed the trend of according a higher degree of deference to trial court findings than the majority was willing to give. (152) The majority remanded the case to the Court of Chancery to determine whether the defendant--a controlling shareholder--satisfied his burden of proving that the transaction for the sale of a corporation was entirely fair. (153) Justice Berger's dissent criticized the majority for not giving the trial court deference on its findings. (154)
C. Justice Randy J. Holland
Randy J. Holland became the youngest justice ever to join the ranks of the Supreme Court of Delaware following his appointment and confirmation in 1986. (155) Justice Holland has already been unanimously reappointed and confirmed for a second twelve-year term (156) set to expire on February 7, 2011. (157) Justice Holland also chairs the Advisory Committee to the American Judicature Society's National Center for Judicial Ethics. (158) Prior to his appointment to the bench, Justice Holland engaged in private practice. (159)
Justice Holland rarely participates in separate opinions. (160) To illustrate, in criminal cases from 1997-2003, Justice Holland participated in all twelve divided cases, voted with the majority in nearly all cases (ninety-six percent), and only filed one separate opinion in the form of a concurrence-in-part statement. (161)
In Hamilton v. State, the majority found that the defendants lacked the requisite mens rea to be charged with homicide of a fetus. (162) In his concurring statement, Justice Holland did not give any specific reason for joining the majority's reasoning with respect to two of the defendants and concurring in the result with respect to the third defendant. (163) Despite Justice Holland's limited involvement in separate criminal opinions, two voting trends are apparent. First, regardless of his reasoning, both parts of Justice Holland's separate statement in Hamilton imply that he favored reduced sentences for the individual defendants. (164) Second, in voting with the majority, Justice Holland voted pro-defendant in seven of the twelve divided decisions (fifty-eight percent). (165)
The notion that Justice Holland has pro-individual tendencies is confirmed by his voting in divided civil cases. (166) In Cannon v. State, Justice Holland filed a dissenting opinion which spoke out against what he perceived as an unnecessary and illegitimate taking of private property by the state. (167) Justice Holland was concerned that eminent domain was a legislative power and that the legislature could not delegate to the DelDOT such unbridled discretion. (168) Justice Holland's dissenting view came down to one fundamental concept: "The [plaintiffs'] constitutionally protected private property rights cannot be subordinated to an administrative agency's decision to repudiate the pursuit of a myriad of acceptable alternatives for wetlands mitigation, simply as a matter of its own convenience." (169) From his language, it can be inferred that Justice Holland viewed the court's decision as a threat to basic democratic principles because the non-delegable powers were not exercised in a fair or reasonable manner.
This inference finds support in Nationwide Gen. Ins. Co. v. Royal. (170) In that case, the court denied an insured's petition for underinsured motorist coverage for injuries caused by a drive by shooting. (171) In joining Justice Walsh's dissent, Justice Holland supported the argument that that public policy demanded clarified and more equitable legal standards to provide appropriate remedies for individuals who are debilitated by inexcusable tortious acts. (172)
In the context of business organizations disputes, Justice Holland voted with the majority in all five divided cases. (173) While this may appear to convey very little of his underlying views, the opposite is true. It is arguable that since all five divided cases held in favor of the claimants, Justice Holland's voting practices suggest a willingness--in limited circumstances--to look beyond the extreme hardships placed on plaintiffs bringing direct, derivative, or other forms of business organizations claims.
D. Justice Myron T. Steele
Myron T. Steele was appointed to the Supreme Court of Delaware on July 28, 2000. (174) Like Justice Berger, Justice Steele preceded his duties on the Supreme Court with service as Vice Chancellor for the Court of Chancery. (175) In addition, Justice Steele has formerly held positions as a Superior Court Judge, Deputy Attorney General, Delaware Senate attorney, and Chairman of the Consumer Affairs Board. (176) Justice Steele is a Democrat and his current term ends July 28, 2012. (177)
In criminal cases, Justice Steele took part in three separate opinions in two cases filing one dissent and one concurrence, and joining another concurrence. (178) Justice Steele voted with the majority in seventy-one percent of the cases, while only voting separately in twenty-nine percent. (179)
Justice Steele's participation in separate criminal opinions displays his qualities as both as a strict constructionist and a realist. In State v. Lewis, the court affirmed the modification of the defendant's sentence to a lower level offense because of "'extraordinary circumstances.'" (180) Justice Steele viewed the majority's interpretation of the tolling provision as far too broad. (181) In his view, the state legislature intended tolling to apply only in four situations, none of which were present in the case. (182) To Justice Steele, the court's use of a "collateral" reason for modification based on overly broad statutory construction created a potential floodgate for defendants seeking relief from imposed sentences, since procedural safeguards to "filter out frivolous claims" would be lacking. (183)
In Capano II, Justice Steele agreed with most of the court's thorough analysis of the death penalty issue, but added a glimpse of judicial realism regarding limiting instructions to jurors. (184) In his opinion, "[w]hen a trial judge 'restricts the evidence to its proper scope and instruct[s] the jury accordingly,' he or she does so with ascertainment of the truth uppermost in mind." (185) Underlying this view is Justice Steele's belief that the criminal justice system is better served when jurors are given limiting instructions regarding the statement at the time the statement is made, rather than allowing the jury to remain confused as to the purpose of the statement until the end of the trial. (186)
Justice Steele's participation rate in divided civil cases is low because he was not appointed to the court until July 2000. Of the twelve possible cases, Justice Steele voted with the majority once, joined in one dissent, and was not present for the remaining ten cases. (187) Nevertheless, by joining Justice Holland in Cannon v. State, which pertains to constitutional liberties, Justice Steele's dissenting vote is at least one indication that he votes proindividual when it comes to civil liberties. (188) This may be speculative since it is based solely upon one case, but the views enunciated in Justice Holland's dissent are consistent with the characterization of Justice Steele's as a judicial realist, because he joined an opinion which suggested an improper purpose for only submitting the plaintiffs' property to the Army Corps of Engineers, rather than each of the viable options. (189)
In business organizations cases, Justice Steele voiced separate opinions frequently compared to other justices, possibly due to his past affiliations with the Court of Chancery. (190) This connection is evidenced by Justice Steele's disagreement with the majority over some decisions made by the Court of Chancery which were reversed on appeal. (191)
Justice Steele epitomizes Delaware business organizations law in that he represents the idea of removing judicial interference from business affairs unless completely necessary. In addition to joining Chief Justice Veasey's dissenting opinion in Omnicare, Justice Steele authored his own dissent in that case. (192) Justice Steele wrote separately to emphasize that the Court of Chancery was correct in applying the deferential business judgment rule to the ultimate decision reached by the NCS board of directors. (193) While strongly endorsing the freedom to sell control of public shares, especially when such a well-planned sale is the only way to salvage some value from a bankrupt corporation, Justice Steele points out the danger that hindsight can play under the majority rule of examining subsequent proposals. (194) In doing so, Justice Steele advances pro-management arguments in what may be an attempt to urge the majority to remember these fundamental principles that established Delaware as a favorable corporate environment. (195)
Justice Steele followed this pro-defendant voting pattern in Cerberus Int'l v. Apollo Mgmt., where he wrote separately, concurring with the court's analysis of relevant law, but dissenting as to the court's holding applying such law to the facts of the case. (196) In this case, however, Justice Steele also showed signs of loyalty and respect for findings and assessments made by the Court of Chancery. Justice Steele argued that the Vice Chancellor's assessment of the case should be respected, but also that in a complex merger case involving a mistake claim, "the best evidence of the intent of the parties is not extrinsic, but is the written instrument itself." (197) While this case was clearly procedural on its face, Justice Steele's dissent went beyond the facts of the case to alert the court to the broad discretion that must be allocated to the Court of Chancery in order to preserve the integrity of justice, along with fundamental concepts of public policy and judicial economy. (198)
E. Justice Jack B. Jacobs
Jack B. Jacobs joined the Supreme Court of Delaware on June 4, 2003 and as such is the most recent appointee. (199) Consistent with Delaware trends, Justice Jacobs served as Vice Chancellor of the Delaware Court of Chancery from October 1985 until he joined the court in 2003. (200) When former Democratic Justice Joseph T. Walsh retired in May of 2003, the Supreme Court was left with a balanced political composition, with two Democratic and two Republican justices remaining: there was a great deal of speculation and interest surrounding the appointment of the next justice, which ultimately resulted in Governor Minner appointing fellow Democrat Jacobs. (201) When considering the scarcity of separate opinions in the court, it should come as no surprise that Justice Jacobs has not yet had the opportunity to author one. (202) In fact, it is ironic that Justice Jacobs participated in more divided cases in the Supreme Court of Delaware prior to rather than after--his appointment. (203)
Justice Jacobs was only present for one divided criminal case, in which he voted with the majority. In Jones v. State, the court reversed a conviction based on various drug offenses because the evidence was obtained through an improper search and seizure. (204) The court's holding in Jones was clearly a pro-defendant result intended to ensure protection of individual liberties under both the Delaware and United States Constitutions. (205) However, since there are no separate opinions or even other cases from which to deduce that Justice Jacobs is a pro-defendant voter, labeling this a trend is not proper.
Justice Jacobs presided over two divided civil cases from 1997-2003, voting with the majority on both occasions. (206) Again, it would be purely speculative to attach a voting style to Justice Jacobs without further participation in separate opinions and divided cases. This is particularly true since neither case implicated real civil liberties.
In the context of business organizations cases, Justice Jacobs was not present for any of the five divided cases. (207) Nevertheless, this area of Delaware law could be significantly affected by Justice Jacobs' appointment. Based on history, it is fair to infer that business law in Delaware will not change dynamically. However, if former service as a Chancellery Judge is indicative of voting patterns, the court's majority could become promanagement/defendant, rather than pro-shareholder/claimant when divided business cases infrequently arise. (208)
F. Joseph T. Walsh
In addition to the court's current membership, two other justices served on the court and subsequently retired during the period relevant to this study. Joseph T. Walsh was appointed to the court on September 30, 1985, (209) and was reappointed in 1997 before retiring early from the bench on May 1, 2003. (210) Prior to joining the Supreme Court of Delaware, Justice Walsh served as a Superior Court Judge from 1972-1984 and as Vice Chancellor of the Court of Chancery from 1984-1985. (211) Justice Walsh is a Democrat. (212)
From 1997-2003, Justice Walsh was conservative in departing from the majority--taking part in only three separate opinions. (213) In divided criminal cases, Justice Walsh voted with the majority in eleven of twelve cases (ninety-two percent) and filed only one dissenting opinion from 1997-2003. (214) In Bullock v. State, Justice Walsh filed a dissenting opinion, with Justice Berger joining, advocating anti-expansionary principles of accepted rules conveying a concern for the unnecessary growth of the plain error rule favored by the majority. (215)
In the context of civil cases, Justice Walsh voted with the majority in ten out of twelve divided cases (eighty-three percent) and issued two dissenting opinions (seventeen percent). (216) Justice Walsh's voting record in civil cases helps, in part, to fulfill the goals of this study to the extent that he appears to voice separate views in defense of public welfare. Justice Walsh's only two dissenting opinions were written in the same year and dealt with similar topics: uninsured/underinsured motorist insurance coverage for tort related recovery and intra-court disputes over interpreting the related statute. (217) Despite the fact that motorist insurance does not fit the standard mold of civil liberties, Justice Walsh wrote both dissenting opinions in favor of protecting the general public welfare from unacceptable tortious activities. In Nationwide Gen. Ins. Co. v. Royal, Justice Walsh explained why the court should accord greater significance to public equity and public policy considerations in such situations: "Delaware's uninsured/underinsured statute was designed to financially protect innocent insureds from individuals in our society who utilize their automobiles in a tortious way and without the ability to adequately compensate their victims. The statute's remedial purpose should dispel doubt in borderline cases, such as this." (218) This statement also reflects Justice Walsh's dissent in Nationwide Mut. Auto. Ins. Co. v. Peebles. (219)
With regard to business organizations cases, Justice Walsh presided over all five divided cases and voted with the majority each time, participating in no separate opinions. (220) As with Justice Holland, however, this static voting pattern is particularly illustrative of Justice Walsh's underlying views concerning a claimant's ability to challenge a business entity in Delaware. (221)
G. Maurice A. Hartnett III
Maurice A. Hartnett III was appointed Justice of the Supreme Court of Delaware in 1994 (222) and is the second non-current member of the court who participated in several divided opinions from 1997-2003. (223) Additionally, Justice Hartnett spent eighteen years as Vice Chancellor of the Court of Chancery. (224) Hartnett's term was set to end in 2006, but he retired in June, 2000. Justice Hartnett is also a Democrat. (225) Although Justice Hartnett only served as a full-time Justice on the court for three of the years relevant to this study, his voting record during that time is anything but stylistically patterned. Justice Hartnett also participated in several divided cases as a retired Justice. (226)
In the context of divided criminal cases, Justice Hartnett participated in six cases from 1997-2003, (227) voting with the majority only once (seventeen percent), while filing three dissenting opinions (fifty percent) and two concurring opinions (thirty-three percent). (228) The majority of divided criminal opinions involving Justice Hartnett dealt with the death penalty and constitutional concerns over search and seizure. In six divided cases, Justice Hartnett voted for the prosecution three times (fifty percent) and the defendant three times (fifty percent). (229) There are two main trends in Justice Hartnett's voting practices suggesting that he is pro-defendant.
First, of six cases, three of them--Shelton, Capano I, and Taylor II--were appeals in death penalty cases. Justice Hartnett's co-authored dissent in Shelton v. State demonstrates an initial prodefendant voting stance when confronting the death penalty. (230) Evidence of this trend is reinforced by Justice Hartnett's concurring opinions in Jones v. State and Taylor II, as well as his dissenting opinion in Capano I. (231)
In Capano I, the court denied the defendant's motion for a limited remand to enlarge the scope of the record on appeal. (232) In a dissent similar to Shelton, Justice Hartnett downplayed the court's procedural concerns and emphasized the defendant's sentence, stating that "the serious nature of the charges should ... be examined now rather than later, in fairness to the judge, the state, the defendant, this Court, and the administration of justice in this state." (233)
Of these three cases, Taylor H is the only one in which Justice Hartnett filed a concurrence voting pro-state, rather than a dissent voting pro-defendant. (234) In reality, however, Justice Hartnett's opinion was pro-defendant despite the fact that he reluctantly concurred with the majority. In that case, which also confronted constitutional rights pertaining to search and seizure, the court held that the judge and jury acted correctly in attaching the death penalty. (235) In his concurrence, which reads more like a dissent, Justice Hartnett condemned the court's affirmation of the death penalty because the jury vote on the issue was not unanimous. (236) In his view, a decision on whether aggravating circumstances outweigh mitigating factors should only be reached in unanimity considering the seriousness of the sentence. (237)
As a second defining trend, Justice Hartnett's underlying views are further defined by his ideas of relevant constitutional analysis and interpretation. Justice Hartnett's dissenting opinion in Dorsey v. State and his concurring opinion in Jones v. State both pertained to constitutional issues associated with search and seizure and also implicated the court's scope of review. (238) In Jones, Justice Hartnett supported a narrow scope of review when he agreed with the majority's holding, but wrote separately because he saw no reason for an elongated constitutional analysis when Delaware Criminal Code section 1902--the "detention" statute--was dispositive of the issue. (239) In Dorsey, Justice Hartnett agreed with Justice Berger's dissent, (240) but wrote a separate dissenting opinion in the voice of a loose constructionist--one who is willing to interpret a statute rather than simply adopting its language at face value--to denounce the court's use of constitutional barriers to prevent the adoption of a good faith exception to the exclusionary rule. (241) In that case, however, Justice Hartnett did proceed with a constitutional analysis and distinguished the situation from his views in Jones. (242) In Dorsey, Justice Hartnett's disagreement with the court came from different lines of constitutional construction. The majority declined to adopt the good faith exception because nothing in the Delaware Constitution authorized it, (243) while Justice Hartnett advocated adopting the good faith exception because nothing in the Delaware Constitution precluded doing so. (244)
In divided civil cases, Justice Hartnett voted with the majority five times (sixty-three percent), while participating in three separate opinions (thirty-seven percent), dissenting twice and concurring once. (245) Justice Hartnett's participation in separate civil decisions did not reveal much about his views. Nevertheless, both dissenting opinions he participated in were pro-individual or civil rights in nature. (246)
In divided business organizations cases, Justice Hartnett only participated in two proceedings, voting with the majority once and filing one concurring opinion. (247) However, Justice Hartnett's one concurring opinion is extremely telling of his views on executive compensation and waste standards currently highly debated topics. In Brehm v. Eisner, the court partially dismissed and remanded a shareholders' derivative action alleging, among other things, waste of corporate assets of the Disney Corporation by a certain executive. (248) Despite the court's suspicion of the relevant transactions and recognition as to the steep uphill task facing any plaintiff alleging waste, the complaint failed because of pleading reasons and not on the merits of the case. (249) In his pro-shareholder concurring opinion, Justice Hartnett was not convinced that such a compelling waste claim could be dismissed purely on procedural grounds. (250) Justice Hartnett opined that in a light most favorable to the plaintiffs, judicial economy is not served in denying claims from which inferences can be drawn from the pleadings, which clearly indicate directorial misconduct. (251) In fact, such views were incorporated into a recent Court of Chancery opinion on the remanded action. (252)
VI. CONCLUSION
Relating back to the initial goals and issues presented by this study, and in assessing the voting trends and overall activity of the Supreme Court of Delaware over the last seven years, both firm conclusions and speculations arise.
The most immediate and noticeable differences within the court are undoubtedly based on diversity and political affiliations. Diversity, as used here, has two different meanings. The first refers to racial, ethnic, and gender-based diversity. With only one female member of the court and no justice being of a visible minority, the court's makeup may be a source of similar views. The second meaning of diversity connotes experience or affiliation-based diversity. For example, Justices Berger, Steele, Jacobs, Walsh, and Hartnett all served as Vice Chancellor of the Delaware Court of Chancery prior to their Supreme Court appointments.
For outside observers looking at this court, it is difficult to resist speculating that political alliances impact views and voting. Once the Democratic majority and Republican minority composition of the court is stated, however, using this feature as a source of trends disappears. Without further "inside" data, it is difficult to assert that political affiliations have any concrete impact on voting--particularly since only two of the past seven justices are Republicans. It would prove interesting to reanalyze this idea in the next few years if Chief Justice Veasey and at least one other member of the court depart. A new chief justice and replacement appointments may present the opportunity to examine whether a Republican majority composition would lead to polar distinctions when divided cases arise. This issue could also be reassessed in a comparative manner if a Republican governor were elected.
At this point in the study, individual roles assumed by each justice can be assembled to vividly illustrate the collective court. Divided criminal cases produced sensitive distinctions among justices--which is likely a natural outgrowth of Delaware being a death penalty state. It was interesting, yet not surprising to see that so many death penalty issues went to a split decision. This shows the court's devotion to unquestioned fairness in processes where a person's life is in its hands. The patterns suggest that Chief Justice Veasey and Justice Holland are pro-defendant voters, with Justice Hartnett displaying similar tendencies as evidenced by his separate opinions in death penalty cases. Like Justice Holland, Justice Walsh predominantly voted with the majority, but his dissent in Bullock separates him slightly from identifiable prodefendant views. Justice Steele voted with the majority more often than not, but his separate opinions speak more to his views on interpretation and judicial realism than a pro-defendant or prostate stance. At the other side of the spectrum is Justice Berger, who seemed to align herself more with the prosecution. On the present court, therefore, Justice Jacobs holds an important position for the future of divided criminal cases. Assuming that Justice Steele is generally a pro-defendant voter, Justice Jacobs would then be the swing vote on appeal as to whether the state or the individual defendant prevails.
Furthermore, a macro perspective of voting trends suggests that the justices were most likely to deviate from trends in civil cases. While several of those cases involved constitutionally protected or otherwise important civil liberties, there was simply less at stake compared to a criminal case. Despite inconsistencies both topically and in terms of trends, however, the court appeared to have strong pro-individual and pro-civil liberties views in civil cases. Nearly every justice represented this trend, differing only with respect to which parties deserved its application. From Cannon alone, it is clear that Justice Holland and Justice Steele defy state interference with private property, and it is difficult to call Chief Justice Veasey's views anti-individual from his rhetoric. While Justice Berger favored the state, cases other than Cannon voiced her proindividual tendencies.
In terms of business organizations cases, Delaware law may receive pressure to grow in the post-Enron world, particularly with the SEC and the Sarbanes-Oxley Act making it more difficult for courts to allow unfettered management of corporations. The fact that Omnicare held against free transferability or sale of control of a corporation is evidence in itself that times may be changing. After all, there have been more separate opinions in business cases in the last year than in the five prior.
With that said, however, Delaware will continue to set the bar for other states in business-related cases regardless of what trends or court composition may suggest. The voting records may imply that the court supports the rare occurrence of a successful shareholder challenge or the free flow of business assets when divided cases arise. The same records, however, depict the unimaginable lack of disagreement over such issues seeing how there have only been five divided cases over a seven-year period in a state that has anything but a shortage of related filings.
The remaining issues posed by this study require identifying a majority and determining whether the Supreme Court of Delaware is a model for judicial efficiency or judicial economy. If it is opined that Justices Steele and Jacobs have not participated in enough separate opinions to express individual views then who is the court's majority? A surprising answer may be that there isn't one, and that even if there were it would make no difference.
In the narrow context of divided cases, hard-lined efficiency can be thought of as making separate opinions rare through constant cooperation and consistent proceedings. Under an extreme judicial economy model, case-law may exhibit comparably few instances of division, but would also reflect a mentality of rubber-stamping "affirm" on dockets, which is absent in Delaware. The number of separate opinions is enough to keep each member informed of opposing views within the panel on important issues and the tone of such writings is not intended to "one-up" the others as may be the case in other American courts. This is judicial efficacy at its best.
For a five member bench, the Supreme Court of Delaware is forced to hear an excessive number of cases: but Delaware's judiciary has figured out how to sustain an optimal balance between unparalleled efficiency and conscious opposition.
APPENDIX 1
Key
(F) = Filed Opinion or Vote
(J) = Joined Opinion
(p) = Opinion Filed in Part
[DELTA] = Defendant
State = Prosecution or Government
SH = Shareholder
Corp.= Corporation (ruling against individual claimant)
Criminal Cases
Case Yr. Dissent Concurrence Majority
Holding
Taylor II 2003 Hartnett (F) State (death
penalty)
Hamilton 2003 Holland(F), [DELTA] (lesser
(p) crimes)
Walton 2003 Berger (F) [DELTA] (new
sentencing)
Lewis 2002 Steele (F), [DELTA]
Berger (J) (modified
sentence
Bullock 2001 Walsh (F), Veasey (F) [DELTA]
Berger (J) (new trial)
Capano II 2001 Steele(F), State (death
Steele(J); penalty)
Chandler(J),
Chandler
Taylor I 2001 Berger (F) [DELTA]
(new trial)
Capano I 2000 Hartnett (F) State
Dorsey 2000 Berger (F), [DELTA]
Hartnett (F)
Jones 1999 Hartnett (F) [DELTA]
Shelton 2000 Berger (F), State
Hartnett (F)
* 1 opinion
by both
Quarles 1997 Veasey (F) State
Civil Cases
Case Yr. Dissent Concurrence Majority
Holding
Cannon 2002 Holland (F), Veasey (F) State
Steele (J)
Hudak 2002 Holland (F),
Berger (J)
Colonial 2001 Berger (F) Corp.
Dugan 2000 Berger (F) [DELTA]
Shepherd 2000 Berger (F) [DELTA]
Gannett 2000 Chandler(F) [DELTA]
Lord 2000 Lamb(F) [DELTA]
Meekins 2000 Berger (F), Corp.
Hartnett (F)
Melson 1998 Berger (F) Hartnett (F) [DELTA]
Nationwide 1997 Walsh (F), Corp.
Gen. Ins. Holland (J)
Acierno 1997 Berger(F) [DELTA]
Nationwide 1997 Walsh (F), [DELTA] /
Mut. Auto. Hartnett (J) [DELTA]
Ins. (declaratory
judgment)
Business Organizations Cases
Case Yr. Dissent Concurrence Majority
Holding
Omnicare, 2003 Veasey (F); Pro-SH/
Inc. Steele (J), [DELTA]
Steele (F)
Cerberus 2002 Steele Steele (F),(p) Pro-SH/
Int'l, Ltd. (F),(p) Same opinion [DELTA]
Brehm 2000 Hartnett (F) [DELTA] /
[DELTA]
(affirmed in
part, reversed
and remanded
in part
Stegemeier 1999 Babiarz (F) Pro-claimant/
[DELTA]
beneficiaries
Kahn 1997 Berger (F), Quillen (F) Pro-
Ridgely (J) SH/claimant/
[DELTA]
APPENDIX 2
Key
*=Did Not Participate in the Decision
M=Filed Opinion or Voted with Majority
D=Filed Dissenting Opinion
C=Filed Concurring Opinion
(j) = Joined Opinion or Voted in that manner
(p) = Opinion Filed in Part
+(j) = Filed and Opinion and Joined another Opinion
(r) = Opinion Filed or Vote Cast by a Retired Justice
(vc) = Opinion Filed or Vote Cast by a Vice Chancellor of the Court of Chancery
CRIMINAL Veasey Berger Holland Steele CASES Taylor II M * M M Hamilton M M M(P);C(p) M Walton M D M M Lewis M D(j) M D Bullock C D(j) M M Capano II M * M C+(j) Taylor I M D M M Capano I M * M * Dorse M D M * Jones M * M * Shelton M D M * Quarles D M M * CIVIL Cannon C M D D(j) Hudak M D(j) D * Colonial M D M M Dugan M D M * Shepherd M D M * Gannett M * M * Lord * M * * Meekins M D M * Melson M D M * Nationwide M M DO) * Gen. Ins. Acierno M D * * Nationwide M M M * Mut. Auto. Ins. BUS. ORG. Omnicare D M M D+(j) Cerberus M M M D(p);C(p) Int'l Brehm M M M * Stegemeier M * M * Kahn * D M * CRIMINAL Jacobs Walsh Hartnett CASES Taylor II * M C(r) Hamilton * M * Walton * M * Lewis * M * Bullock * D * Capano II M * Taylor I * M * Capano I * M D Dorse * M D(r) Jones M(vc) M C Shelton * M D Quarles * M M CIVIL Cannon * M * Hudak * M M (r) Colonial * M * Dugan M(vc) M * Shepherd * M M Gannett * M M Lord * M * Meekins * M D Melson * M C Nationwide * D M Gen. Ins. Acierno M(vc) M M Nationwide * D D(j) Mut. Auto. Ins. BUS. ORG. Omnicare * M * Cerberus * M * Int'l Brehm * M C Stegemeier * M M Kahn * M *
(1) 123 S. Ct. 2325, 2347 (2003) (holding that student body diversity in law school education constitutes a compelling state interest).
(2) 123 S. Ct. 2472, 2484 (2003) (extending the Due Process right of privacy in protecting one's home to include same-sex intimacies).
(3) Many people, if asked about Delaware, would likely respond that it was the first state to ratify the United States Constitution or that for some reason businesses flock to incorporate in the state. Delaware was indeed the first state to adopt the Constitution, see Robert L. Maddex, THE U.S. CONSTITUTION A TO Z 394 (2002), and by the year 2000, it was the state of incorporation for roughly 300,000 corporations, including more than half of the Fortune 500 and New York Stock Exchange companies. Michael D. Goldman & Eileen M. Filliben, Corporate Governance: Current Trends and Likely Developments for the Twenty-First Century, 25 DEL. J. CORP. L. 683, 704 (2000). These figures are due in large part to the development of corporate law in Delaware, yet they hardly touch the surface of what makes the Delaware judiciary and more specifically, the Supreme Court of Delaware, so unique.
(4) The following list includes the universe of divided cases utilized in this study: Criminal Cases: Taylor v. State, 822 A.2d 1052 (Del. 2003) [hereinafter Taylor II]; Hamilton v. State, 816 A.2d 770 (Del. 2003); Walton v. State, 821 A.2d 871 (Del. 2003); State v. Lewis, 797 A.2d 1198 (Del. 2002); Bullock v. State, 775 A.2d 1043 (Del. 2001); Capano v, State, 781 A.2d 556 (Del. 2001) [hereinafter Capano II]; Taylor v. State, 777 A.2d 759 (Del. 2001) [hereinafter Taylor II; Capano
v. State, 758 A.2d 499 (Del. 2000) [hereinafter Capano I]; Dorsey v. State, 761 A.2d 807 (Del. 2000); Jones v. State, 745 A.2d 856 (Del. 1999); Shelton v. State, 744 A.2d 465 (Del. 1999); Quarles v. State, 696 A.2d 1334 (Del. 1997). Civil Cases: Cannon v. State, 807 A.2d 556 (Del. 2002); Hudak v. Procek, 806 A.2d 140 (Del. 2002); Colonial Ins. Co. v. Ayers, 772 A.2d 177 (Del. 2001); Dugan v. Delaware Harness Racing Comm'n, 752 A.2d 529 (Del. 2000); Shepherd v. Clemens, 752 A.2d 533 (Del. 2000); Gannett Co., v. Kanaga, 750 A.2d 1174 (Del. 2000); Lord v. Souder, 748 A.2d 393 (Del. 2000); Meekins v. Barnes, 745 A.2d 893 (Del. 2000); Melson v. Melson, 711 A.2d 783 (Del. 1998); Nationwide Gem Ins. Co. v. Royal, 700 A.2d 130 (Del. 1997); Acierno v. Worthy Bros. Pipeline Corp., 693 A.2d 1066 (Del. 1997); Nationwide Mut. Auto. Ins. Co. v. Peebles, 688 A.2d 1374 (Del. 1997). Business Organizations Cases: Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003); Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141 (Del. 2002); Brehm v. Eisner, 746 A.2d 244 (Del. 2000); Stegemeier v. Magness, 728 A.2d 557 (Del. 1999); Kahn v. Tremont Corp., 694 A.2d 422 (Del. 1997). Note that Taylor I and Taylor II are unrelated cases.
(5) See Vincent Bonventre & Luke Bierman, State Constitutional Jurisprudence: Decision Making at the New York Court of Appeals, 13 TOURO L. REV. 3, 8 (1996) (asserting that "it is much more revealing[,] ... much more consistent ... to look at the non-unanimous decisions .... where the issues seem to be troublesome[,] ... nettlesome enough, where the issues are important enough that the judges are willing to go public with their disagreement").
(6) See infra notes 11-43 and accompanying text.
(7) See infra notes 44-53 and accompanying text.
(8) See infra notes 54-73 and accompanying text.
(9) See infra notes 74-252 and accompanying text.
(10) See infra Part VI.
(11) See Vincent Martin Bonventre & Amanda Hiller, Public Law at the New York Court of Appeals: An Update on Developments, 2000, 64 ALB. L. REV. 1355, 1379-80 (2001). Throughout this study, the term separate opinion is used to refer to concurring or dissenting opinions.
(12) See id. at 1379 (citing C. HERMAN PRITCHETT, THE ROOSEVELT COURT: A STUDY IN JUDICIAL POLITICS AND VALUES 1937-1947, at xii (1948); Hon. Hugh R. Jones, Cogitations on Appellate Decision-Making, 34 THE REC. 543, 556 (1979)).
(13) Id. (quoting William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 437 (1986)).
(14) Id. at 1380 (asserting that examining separate opinions can reveal "individual judicial philosophies").
(15) See Randy J. Holland & David A. Skeel, Jr., Deciding Cases Without Controversy, 5 DEL. L. REV. 115, 118 (2002). Compared to other states and jurisdictions, Delaware remains an exception to the general practice of issuing divided opinions. Id. at 118-19. In particular, the Supreme Court of Delaware rarely issues separate opinions in the context of highly controversial issues, despite its stature in the area of corporate law. Id. at 118. See also David A. Skeel, Jr., The Unanimity Norm in Delaware Corporate Law, 83 VA. L. REV. 127, 132 (1997).
(16) See Holland & Skeel, supra note 15, at 119.
(17) Id.
(18) See id. at 120-21.
(19) Id. at 119-25. The size of Delaware as a state is only pertinent to the extent that some smaller states tend to have smaller high courts, however, "the combination of a small state and a small court is far from determinative as an indicator" of the frequency of separate opinions. See id. at 119-20 (citing as an example the Supreme Court of Vermont's five-member panel which handed down twenty-six non-unanimous opinions in one year).
(20) See DEL. CONST. art. IV, [section] 3 (1974 & Supp. 2002); Holland & Skeel, supra note 15, at 124. Another distinctive quality of this court is that the Delaware Constitution authorizes designation of "judges of the constitutional courts" to hear cases in order to meet the required quorum. See DEL. CONST. art. IV, [section] 12 (Supp. 2002) (authorizing the chief justice to designate judges to sit in where a quorum cannot be met because of disqualification, incapacity, or vacancy).
(21) See Holland & Skeel, supra note 15, at 121 ("Having fewer decision makers reduces the likelihood that factions among the justices will undermine the Court's likelihood of speaking with a unanimous voice.").
(22) AMERICAN BAR ASSOCIATION, JUSTICE IN JEOPARDY: FACT SHEET ON JUDICIAL SELECTION METHODS IN THE STATES (2003), at http://www.manningproductions.com/ABA263/FactSheet.htm (last visited Jan. 14, 2004).
(23) Id.
(24) See Celia Cohen, Name that Judge, DELAWARE GRAPEVINE, Mar. 12, 2003, at http://www.delawaregrapevine.com/jan-mar03stories/3.03%20walsh.htm (last visited Jan. 14, 2004) [hereinafter Cohen, Name that Judge]. All justices are appointed by the governor based on a list of candidates submitted by the Judicial Nominating Commission; a majority of the state Senate provides consent as to the nominations. See THE AMERICAN BENCH: JUDGES OF THE NATION 533 (Diane R. Irvine et. al. eds., 14th ed. 2003) [hereinafter THE AMERICAN BENCH].
(25) DEL. CONST. art. 1V, [section] 3 (1974 & Supp. 2002).
(26) See Celia Cohen, Jacobs and Kuhn Move Up, DELAWARE GRAPEVINE, June 4, 2003, http://www.delawaregrapevine.com/june03stories/603%20judges.htm (last visited Jan. 14, 2004) [hereinafter Cohen, Jacobs and Kuhn Move Up] (Justices Berger, Steele, and Jacobs are Democrats; Chief Justice Veasey and Justice Holland are Republicans).
(27) See Holland & Skeel, supra note 15, at 122 23.
(28) DEL. CONST. art. IV, [section] 3 (1974 & Supp. 2002).
(29) See Holland & Skeel, supra note 15, at 123-24 (explaining that the unanimity of the court is due, in part, to the fact that Delaware does not have an "intermediate court of appeals per se," thus, its Supreme Court is required to decide appeals from the state's lower courts whether or not the cases present unique or controversial questions of law). There are four courts of limited jurisdiction, two courts of general jurisdiction, and one court of last resort-the court of last resort is the sole focus of this study. The courts of limited jurisdiction are the Alderman's Court, the Justice of the Peace Court (nineteen courts), the Court of Common Pleas (three counties), and the Family Court (three counties). THE AMERICAN BENCH, supra note 24, at 534--35. The Court of Chancery (three counties) and the Superior Court (three counties) have general jurisdiction. Id. at 533-34. The Supreme Court of Delaware is the court of last resort. Id. at 533.
(30) THE AMERICAN BENCH, supra note 24, at 533.
(31) See Holland & Skeel, supra note 15, at 124 (explaining that unlike a high court with discretionary jurisdiction, the Supreme Court of Delaware cannot decide which appeals to hear). It should be mentioned that despite the fact that Delaware has no intermediate appellate courts per se, the Court of Chancery wields a great deal of power and influence over the development of the state's corporate case law. See THE AMERICAN BENCH, supra note 24, at 533 (stating that the Court of Chancery "has jurisdiction over all equity matters").
(32) Consistency and predictability in the law--particularly relating to corporate directors--is believed to be a major reason for so many companies opting to incorporate in the State of Delaware. See E. Norman Veasey, The Drama of Judicial Branch Change in This Century, 17 DEL. LAW. 4, 4 (Winter 1999/2000), WL 17-WTR DELAW 4.
(33) See Holland & Skeel, supra note 15, at 124-25.
(34) Id.
(35) See id.
(36) This decision-making process involves a number of steps. First, a decisional conference is held immediately following oral arguments or submissions of briefs, at which time justices discuss the case and voice "tentative votes." Id. at 125. If the justices are in agreement following the conference, the panel decides the form of announcement of the disposition and the presiding justice designates the justice to prepare it. Id. at 125-26. If, however, there is even the possibility of a dissenting view, the case is promptly scheduled for a rehearing en banc. Id. at 126. Next, all justices are encouraged to submit proposed revisions to the writer, whether the justice is in full agreement or has shifted her view while the order or opinion is in preparation. See Holland & Skeel, supra note 15, at 126-27. Finally, if a justice's view remains in conflict, a separate writing of such views is submitted to the other justices, who may then incorporate them fully into the final product, accept a compromise, or attach them as a separate opinion. Id. at 127.
(37) Justice Steele replaced Maurice A. Hartnett III, see Patrick Jackson, Steele locks up Senate confirmation, NEWS JOURNAL (Wilmington), July 1, 2000, at 6A, LEXIS, NEWJNL file, and Justice Jacobs took the place of Joseph T. Walsh. See Cohen, Jacobs and Kuhn Move Up, supra note 26.
(38) Justice Holland was reappointed in 1999. THE AMERICAN BENCH, supra note 24, at 541.
(39) See Cohen, Jacobs and Kuhn Move Up, supra note 26.
(40) See Darrel W. Cole, Top Candidates Identified for Bench Seats, 6 DEL. L. WKLY., Apr. 9, 2003 (reporting that Justice Veasey will retire upon expiration of his term in April 2004).
(41) Justice Berger's term expires on July 22, 2006. THE AMERICAN BENCH, supra note 24, at 539.
(42) See Rodman Ward, Jr. & Erin Kelly, Why Delaware Leads in the United States as a Corporate Domicile, 9 DEL. LAW 15 (1991), WL 9-FALL DELAW 15 (explaining that Delaware strives to retain the state's reputation for predictable laws and a reliable judiciary).
(43) It is important to note that Article IV, Section 12 of the Delaware Constitution inevitably brings into consideration the views of justices that are not full-time members of the court. See Del. Const. art. IV, [section] 12; supra note 29 and accompanying text.
(44) See supra note 4 (providing citations to the universe of cases utilized in this study).
(45) See supra note 4.
(46) See infra app. 1.
(47) See id.
(48) See infra app. 1.
(49) This was calculated by taking the relative number of majority holdings and dividing by the total number of divided criminal cases.
(50) See infra Part IV.
(51) See infra app. 2.
(52) See infra Part V.
(53) See infra Part VI.
(54) See Bonventre & Hiller, supra note 11, at 1380-81:
When studying divided opinions, judicial process scholars traditionally focus on so-called "public law" decisions--decisions involving conflicts between individuals and governmental powers, such as criminal cases and cases where civil rights and liberties are at stake. In these studies, separate opinions are usually analyzed in terms of their ideological position in comparison to the majority opinion. By doing so, court studies can illuminate key areas of difference with regard to judges' fundamental philosophical beliefs.
Id. (internal citations omitted).
(55) See infra app. 1.
(56) See infra app. 2.
(57) See supra note 29 and accompanying text.
(58) See infra app. 1. The "thirteenth" criminal case with a separate opinion, In re Benge, imposed disciplinary action on an attorney for repeated neglect of affairs and ethical responsibilities. 754 A.2d 871 (Del. 2000). This case does not easily fit into any of the study's classifications; it was therefore not included when affixing percentages.
(59) See infra app. 1.
(60) See Taylor II, 822 A.2d 1052 (Del. 2003); Capano II, 781 A.2d 556 (Del. 2001); Shelton v. State, 744 A.2d 465 (Del. 2000); Capano I, 758 A.2d 499 (Del. 2000); see also app. 1.
(61) See infra app. 2. Justice Berger filed three dissenting opinions, co-authored one with Justice Hartnett, and joined two others. See id. Justice Berger did not file or join any concurring opinions in criminal cases. See id. Justice Hartnett filed two dissenting opinions and co-authored one with Justice Berger. See id. In addition, Justice Hartnett filed three concurring opinions. See id.
(62) See infra app. 1.
(63) But see Cannon v. State, 807 A.2d 556, 563 (Del. 2002 (Justice Steele joined in Justice Holland's dissenting opinion); see infra app. 2.
(64) See infra app. 2.
(65) In civil cases, Justice Berger filed six dissenting opinions, joined in one dissenting opinion, and did not participate in any concurring opinions. See infra app. 2.
(66) See infra app. 1. But see Shepherd v. Clemens, 752 A.2d 533 (Del. 2000) (holding for the individual petitioners over constitutional parenting rights); Nationwide Mut. Auto. Ins. Co. v. Peebles, 688 A.2d 1374 (Del. 1997) (issuing a declaratory judgment rather than a definitive holding for either party).
(67) While every criminal case implicates civil liberties, many of the divided civil cases are too remote topically to be relevant to this study. For purposes of uniformity, only select divided civil cases are discussed.
(68) See supra note 32.
(69) Of the five divided business organizations cases from 1997 to 2003, the most notable and controversial is Omnicare, Inc. v. NCS Healthcare, Inc., which brought into question well established principles of corporate governance in Delaware. See 818 A.2d 914, 918 (Del. 2003) (holding that the defensive measures used by Genesis to force NCS Healthcare into a merger that was not in its best interests were invalid and unenforceable).
(70) It should be noted that since there were no published opinions issued by the court in Miller v. Agranoff, the case was excluded from the universe of divided business cases. 750 A.2d 530 (Del. 2000). See infra app. 1.
(71) See infra apps. 1-2.
(72) In corporate law cases, Justice Steele filed two dissenting opinions--one of which was in part concurring--and joined another. See infra app. 2.
(73) See infra app. 1. It should be noted that Brehm v. Eisner, 746 A.2d 244, 267 (Del. 2000), was really a pro-shareholder opinion even though the result required an amended complaint. See infra notes 248-52 and accompanying text (discussing the court's finding in Brehm). Additionally, a trend appears from the frequency of separate opinions in business cases. From 1997-2001, there were only three divided business cases producing four separate opinions; from 2002-2003, however, there were two such cases with three separate opinions. Could this signal a shift away from steadfast deference to directorial decisions in Delaware? Perhaps this will be the new-age, post-Enron balance between favorable laws designed to encourage management to choose Delaware on the one hand, and the increased role taken by the Securities and Exchange Commission on the other.
(74) Delaware Courts Website, Supreme Court of Delaware: Meet the Justices, at http://courts.state.de.us/supreme/justices.htm (last visited Jan. 14, 2004) [hereinafter Meet the Justices].
(75) THE AMERICAN BENCH, supra note 24, at 545.
(76) See infra app. 2.
(77) See Bullock v. State, 775 A.2d 1043, 1054 (Del. 2001) (Veasey, C.J., concurring) (voting in favor of the defendant); see also Quarles v. State, 696 A.2d 1334, 1340 (Del. 1997) (Veasey, C.J., dissenting) (voting in favor of the individual defendant and fundamental liberties); he did not join any other separate criminal opinions. In the ten remaining divided criminal cases (83%), Justice Veasey voted with the majority outright. See infra app. 2.
(78) See Quarles, 696 A.2d at 1340-46 (Veasey, C.J., dissenting). In Quarles, two defendants exhibiting what the police believed was irregular behavior were subjected to a search of both their possessions and their persons after claiming that they only agreed to a search of their possessions. Id. at 1336. As a result of the search, the police found a large quantity of cocaine on the person of one of the defendants. Id. The majority found that the search and seizure was constitutional and that the record from trial supported that the defendants consented to a search of their persons. See id. at 1340.
(79) Id. at 1340 (Veasey, C.J., dissenting) (internal quotations omitted).
(80) See id. at 1339. In support of their conclusion the majority recognized the combination of the defendants' "'drug courier profile' characteristics" and their "suspicious and odd behavior"--which included a "startled reaction" to the officers and "quickly leaving the bus terminal in a direction away from the officers"--as sufficient to create a degree of suspicion which justified the seizure. Quarles v. State, 696 A.2d 1334, 1338 (Del. 1997).
(81) Id. at 1342 (Veasey, C.J., dissenting).
(82) See id. at 1341 (Veasey, C.J., dissenting) ("[T]o assume that innocent persons have no reason to fear sudden approach by police ignores the experiences of many members of minority groups.").
(83) 775 A.2d 1043, 1046, 1049 (Del. 2001). In Bullock, the majority reversed a manslaughter conviction under the "plain error rule" and remanded the case. Id. at 1045, 1046, 1054. The majority concluded that the Delaware Criminal Code mandates that in cases where the defendant contends that the resulting injury lies outside the scope of which he is aware, an examination of "actual and probable results must take the specific facts into account." Id. at 1050. In this case, the instructions given to the jury clearly did not take such considerations into account, which resulted in plain error. Id. at 1054.
(84) See id. at 1055 (Veasey, C.J., concurring).
(85) Id. at 1054 (Veasey, C.J., concurring). ("I do not say that in every case materially incorrect jury charge will constitute plain error per se. But certainly this is a case where we must find plain error."). Id. at 1055.
(86) See Jd. at 1055 (Veasey, C.J., concurring):
A defendant is "entitled" to a "correct statement of the substance of the law." ... "The primary purpose of jury instructions is to define with particularity the factual issues, and clearly to instruct the jury as to the principles of law which they are to apply".... "In any criminal case, it is the duty of the jury to examine facts and assign to or eliminate criminal responsibility for specific individuals. The applicable principles of law and the identity of the persons involved must not be confused."
Id. at 1055-56 (Veasey, C.J., concurring).
(87) Id. at 1055 (Veasey, C.J., concurring) ("This is one of those rare cases where the judge had a heightened duty to 'get it right' when settling on what to tell the jury about the law.").
(88) Id. at 1057-59 (Veasey, C.J., concurring).
(89) Chief Justice Veasey was not present for Lord v. Souder, 748 A.2d 393 (Del. 2000). See infra app. 2.
(90) See infra app. 2.
(91) 807 A.2d 556, 562 (Del. 2002) (Veasey, C.J., concurring).
(92) Id. at 558 (holding that the state had the authority to condemn the property for its stated purpose). As an agent, the Department of Transportation of the State of Delaware ("DelDOT") was authorized by the state to find a suitable site for wetlands as part of the larger goal of completing the "Route 54 highway reconstruction project." Id. The wetlands mitigation was a condition of the United States Army Corps of Engineers' ("the Corps") permit to fill other wetlands in connection with the highway reconstruction project. Id. A study conducted by DelDOT identified six alternatives for completing the project, each of which would cause interference with the plaintiffs' property, in the form of creating wetlands to replace those lost. Id. The Corps declared any site that was "on-site" and "in-kind" ideal, and plaintiffs' property matched the description. Id. 93 Id. at 559.
(94) Id. at 562 (Veasey, C.J., concurring).
(95) Id. at 562-63 (Veasey, C.J., concurring) (explaining that the issue before the Supreme Court was whether the trial court abused its discretion in finding that DelDOT exercised sound judgment supported by facts and reason).
(96) See Cannon v. State, 807 A.2d 556, 563 (Del. 2002) (Veasey, C.J., concurring) (asserting DelDOT's ability to rank prospective sites and to take into account as a factor which site the Corps would accept).
(97) Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914, 939 (Del. 2003) (Veasey, C.J., dissenting).
(98) Id. (holding that the defensive measures adopted by the NCS board of directors to ensure passage of a merger were preclusive, thus invalid as against public policy and inconsistent with the fiduciary duties of the directors). The majority's holding essentially conveyed that a merger agreement must contain a "fiduciary out"--a window in which a board of directors can entertain subsequent offers that are more beneficial to all shareholders. See id. at 936-39 (emphasizing the need to protect minority shareholders from directorial decisions which do not result in profit maximization for minority shareholders, but rather restrict the minority's ability to participate in the decision making process). Much of the controversy arising from this case resulted from the majority's application of what it felt was the proper standard of review. Normally, when the process used by a board of directors is informed, disinterested, and in good faith, the deferential business judgment rule will be applied and the validity of the decision will be presumed. See id. at 927-28. In this case, however, the majority chose to apply a more exacting level of scrutiny because the directorial decision revolved around the board's enactment of a defensive measure designed to preserve an existing proposal and repel any subsequent competing merger proposals. Id. at 928; see also Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34, 42 (Del. 1993) (enumerating two express exceptions to the application of the business judgment rule, including the "adoption of defensive measures in response to a threat to corporate control"); see Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 958 (Del. 1985) (suggesting that absent a breach of fiduciary duty, the court will apply the business judgment rule).
(99) See Omnicare, Inc., 818 A.2d at 939 (Veasey, C.J., dissenting).
(100) See id. at 940-41 (Veasey, C.J., dissenting).
(101) See id. at 945-46 (Veasey, C.J., dissenting).
(102) THE AMERICAN BENCH, supra note 24, at 539.
(103) Id. See also Cohen, Name that Judge, supra note 24 (stating that "[i]n a state where corporate law is king, the foundation of Delaware's international legal reputation and a fount of state revenue and lucrative law practices, the Chancery Court where business law is made is often a stepping stone to a seat on the Supreme Court").
(104) Meet the Justices, supra note 74.
(105) The criminal cases in which Justice Berger voted with the majority are: Quarles v. State, 696 A.2d 1334 (Del. 1997) (voting in favor of the prosecution) and Hamilton v. State, 816 A.2d 770 (Del. 2003) (voting in favor of the individual defendant). Justice Berger dissented in: Walton v. State, 821 A.2d 871, 879 (Del. 2003) (voting in favor of the prosecution); State v. Lewis, 797 A.2d 1198, 1203 (Del. 2002) (voting in favor of the prosecution); Bullock v. State, 775 A.2d 1043, 1059 (Del. 2001) (voting in favor of the prosecution); Taylor I, 777 A.2d 759, 773 (Del. 2001) (voting in favor of the prosecution); Dorsey v. State, 761 A.2d 807, 821 (Del. 2000) (voting in favor of the prosecution); and Shelton v. State, 744 A.2d 465, 511 (Del. 1999) (voting in favor of individual defendant). See infra app. 2.
(106) See infra app. 2.
(107) The four cases for which Justice Berger was in absentia are: Taylor II, 822 A.2d 1052 (Del. 2003); Capano II, 781 A.2d 556 (Del. 2001); Capano I, 758 A.2d 499 (Del. 2000); and Jones v. State, 745 A.2d 856 (Del. 1999). See infra app. 2.
(108) See, e.g., Bullock v. State, 775 A.2d 1043, 1059 (Del. 2001) (Walsh, J., dissenting) (refusing to extend the plain error standard of review in criminal cases to cover a faulty jury instruction); Taylor I, 777 A.2d 759, 773 (Del. 2001) (Berger, J., dissenting) (agreeing with the majority's creation of a new procedural rule, but refusing to hold that a violation of that rule constituted prejudicial error).
(109) See, e.g., Walton v. State, 821 A.2d 871, 879 (Del. 2003) (Berger, J., dissenting) (arguing that the established definition of "displayed" under the state's armed robbery statute does not require that the victim actually see the weapon, but rather only to believe it to have been exhibited); State v. Lewis, 797 A.2d 1198, 1203 (Del. 2002) (Berger, J., dissenting) (chiding the majority for extending the statutory definition of "extraordinary circumstances" too broadly, and asserting that it should be limited only to situations entirely beyond the defendant's control).
(110) See Taylor I, 777 A.2d at 773 (Berger, J., dissenting) (disagreeing with the majority's conclusion that "failure to follow this newly announced timing rule constituted prejudicial error mandating a new trial in this case"). According to the majority opinion, there is only a limited window for allowing the state to introduce evidence of prior bad acts in anticipation of a defense during its case-in-chief. See id. at 766 (holding that "the State may introduce evidence of a defendant's other crimes in its case-in-chief only where that evidence is independently relevant to an issue or fact that the State must prove as part of its prima facie case") (emphasis added). Based on this timing standard, the majority concluded that in this case allowing the prosecution to introduce two prior convictions during its case-in-chief was too prejudicial to the defendant. Id. at 773. This holding addressed fairness of process to a criminal defendant. According to the majority, it would be unfair to allow the prosecution this opportunity to influence the jury before the defendant could raise an entrapment defense or introduce mitigating factors. See id. at 766-67.
(111) See id. at 766.
(112) See id. at 773-74.
(113) See id.
(114) Bullock v. State, 775 A.2d 1043, 1059-62 (2001) (Berger, J., dissenting). See supra notes 83-88 and accompanying text (discussing the majority holding and Chief Justice Veasey's concurring opinion in Bullock).
(115) See Bullock, 775 A.2d at 1062 (Walsh, J., dissenting).
(116) Id. at 1062 (Walsh, J., dissenting).
(117) Id. ("Reversing a trial judge on the basis of an issue he or she did not have an opportunity to consider should be limited to egregious errors, not those involving the omitted subtleties of jury instructions or the giving of an instruction in the precise form requested by counsel."). The dissent would limit the application of the plain error rule to errors "'so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process....'" Id. at 1060.
(118) Walton v. State, 821 A.2d 871, 879 (Del. 2003) (Berger, J., dissenting). The defendant in this case entered a bank and presented a note that said "'I have a bomb.'" Id. at 873. At trial, he was convicted of first degree robbery, even though he did not have a bomb and did not make any gesture as if he did. Id. For a defendant to be convicted of first degree robbery under Delaware Criminal Code [section] 832(a)(2), "the victim must subjectively believe the defendant has a weapon" and the defendant must objectively manifest that he has a weapon. Id. at 874. On appeal, the defense contested that a person having his hand in his pocket does not amount to an objective manifestation sufficient to satisfy the "display" element of the statute. Id. at 875.
(119) See id. at 877 (asserting that the actual act of "display' is the conduct establishing the additional, aggravating element that elevates second degree robbery to the more serious, first degree offense"). The majority averred that a verbal or written threat, by itself, will never be enough to constitute a "display." Id.
(120) Id. at 879 (Berger, J., dissenting).
(121) Id. (citing State v. Smallwood, 346 A.2d 164, 166 (Del. 1975)).
(122) Id. at 880 (Berger, J., dissenting).
(123) Id. at 881 (Berger, J., dissenting).
(124) See Dorsey v. State, 761 A.2d 807, 821 (Del. 2000) (Berger, J., dissenting).
(125) Id. at 808-09.
(126) Id. (stating the defendant's argument that evidence of a recovered firearm should have been suppressed at his trial because there was no probable cause to issue a warrant for the search).
(127) See id. at 813 (emphasizing that both the United States Constitution and the Delaware Constitution guarantee rights to individuals against groundless searches, and that such guarantees are violated where, as here, the affidavit for a warrant contains nothing that would allow an independent or detached judge to infer probable cause).
(128) Id. at 818 (providing for "'the exclusion from trial of any evidence recovered or derived from an illegal search and seizure'"). The majority distinguished the U.S. Supreme Court's "judicially created" search and seizure protections from those guaranteed by the Delaware Constitution to dispose of the possibility that there is a "good faith exception" to exclusionary rule. See id. at 819.
(129) See id. at 821-22 (Berger, J., dissenting).
(130) Dorsey, 761 A.2d at 822 (Del. 2000) (Berger, J., dissenting).
(131) Id. at 823 (Berger, J., dissenting). Justice Berger distinguished her view from knowing violations of privacy by police, stating that "we should [only] condone unknowing constitutional violations where the police are attempting to fully comply with the law." Id. She also believes that public policy requires Delaware law to remain consistent with federal law, which recognizes a good faith exception. Id.
(132) See Shelton v. State, 744 A.2d 465, 511, 516 (Del. 1999) (Hartnett, J., and Berger, J., dissenting) (recommending reversal of the defendant's penalty and a new hearing).
(133) Id. at 511 (admitting that the United States Supreme Court has not decided whether allocution is constitutionally protected, but disagreeing with the majority's conclusion that neither the federal nor state constitutions protect the right to allocution).
(134) See id. at 489-91 (explaining that the failure of counsel to object to the limiting instruction was consistent with the defendant's overall plan of not getting into specifics about the murder in front of the jury).
(135) Id. at 511 (Hartnett, J., and Berger, J., dissenting) (stating that "allocution is so fundamental to a fair trial in a capital case that deprivation of that right violates both State and Federal Constitutional due process").
(136) Id. at 515 (Hartnett, J., and Berger, J., dissenting) (noting that the defendant was representing himself pro se, and as such, should not have been denied complete allocution rights simply because he did not have the know-how to make a sophisticated objection to the limiting instruction).
(137) See id.
(138) See infra app. 2.
(139) See supra notes 92-93 and accompanying text (explaining the court's conclusions as to the finding that DelDOT acted within its discretionary powers).
(140) See, e.g., Colonial Ins. Co. v. Ayers, 772 A.2d 177, 181-82 (Del. 2001) (stating that rules of statutory construction favor an interpretation that gives effect to the intent of the legislature).
(141) See, e.g., Meekins v. Barnes, 745 A.2d 893, 902 (Del. 2000) (choosing to follow and adhere to the plain meaning of the statute).
(142) 745 A.2d at 897-900 (Del. 2000) (holding that the plaintiff failed to file her claim within the applicable statute of limitations). See generally DEL. CODE ANN. tit. 18, [section] 6856 (2003) (prescribing the statute of limitations for medical negligence as two years after the occurrence of the injury causing event, or three years if a reasonable person had no way of knowing of the injury).
(143) DEL. CODE ANN. tit. 18, [section] 6856 (2003); Meekins, 745 A.2d at 901 (Berger, J., dissenting) (citing Dunn v. St. Francis Hosp., Inc., 401 A.2d 77, 78 (Del. 1979)). However, Justice Berger distinguished the case from Dunn because in Meekins, the dates of the negligent act and the injury were different. Meekins, 745 A.2d at 901.
(144) Meekins, 745 A.2d at 901-02 (Berger, J., dissenting). Justice Berger said that the court should "follow settled principles of statutory construction, and give effect to the plain language of [section] 6856." Id. at 902.
(145) Id. at 900, 902 (Berger, J., dissenting).
(146) See, e.g., Shepherd v. Clemens, 752 A.2d 533, 542 (Del. 2000) (Berger, J., dissenting); Melson v. Melson, 711 A.2d 783, 789 (Del. 1998) (Berger, J., dissenting) (allocating a higher level of discretion to trial courts in finding "undue influence" to rebut the presumptive validity of a will or capacity of its executor). But see Acierno v. Worthy Bros. Pipeline Corp., 693 A.2d 1066, 1070 (Del. 1997) (Berger, J., dissenting) (stating that trial court findings "should be respected unless they are clearly wrong," which she believed they were). This procivil liberty trend is interesting when compared to Justice Berger's criminal voting record. In criminal cases, Justice Berger rarely voted or wrote separately for the individual defendant. However, in these three cases, she showed a great deal of sympathy for a parent's fundamental right to parent, an executrix of a will whose mental capacity was questioned, and a woman whose misdiagnosis left her with cancer and no legal remedy, respectively.
(147) Shepard, 752 A.2d at 542 (reversing the Family Court and holding that there is no constitutional liberty interest in parental rights when the only connection that existed between the parents and child was biological and conception occurred during a criminal act). In this case, the court was particularly disinclined to grant fundamental parenting rights because the child was thought to have been conceived through an act of statutory rape by the biological father who was a party. Id. at 535, 542. Even though the biological father was not the claimant, Justice Berger's dissention in this case was in favor of civil liberties.
(148) Id. at 544 (Berger, J., dissenting).
(149) See id. at 543-44 (Berger, J., dissenting).
(150) See Kahn v. Tremont Corp., 694 A.2d 422, 434 (Del. 1997) (Berger, J., dissenting); infra app. 2.
(151) See infra apps. 1-2.
(152) 694 A.2d 422, 434 (Del. 1997) (Berger, J., dissenting); see also infra apps. 1-2.
(153) See id. at 432-33.
(154) See id. at 434 (Berger, J., dissenting).
(155) Meet the Justices, supra note 74.
(156) See id.
(157) THE AMERICAN BENCH, supra note 24, at 541.
(158) Meet the Justices, supra note 74.
(159) See id.
(160) See infra app. 2.
(161) See Hamilton v. State, 816 A.2d 770, 776 (Del. 2003) (Holland, J., concurring). In divided criminal cases, Justice Holland's voting record was similar to Chief Justice Veasey's in that he predominantly voted with the majority. See infra app. 2.
(162) See Hamilton, 816 A.2d at 776 (assuming that a fetus could be the victim of a homicide).
(163) See id. (Holland, J., concurring).
(164) See id.
(165) See infra app. 2.
(166) Justice Holland participated in ten of the twelve divided civil cases, voting with the majority in seven cases (70%). In this area, however, Justice Holland dissented in 30% of the cases, authoring two dissents and joi