Del. Sup. Ct. Int. Opp. P. XVIII

As amended through May 31, 2024

Rule XVIII - Motion Practice

(1)Motion Justice.

(a) Monthly rotation. For each month of the year, the Chief Justice designates a "motion Justice." The motion Justice assignment is typically rotated among all five Justices in order of seniority. All applications by motion, however, must be made to the Court.

(b) Circulation by Clerk. The Clerk will refer the matter to the current motion Justice unless the motion Justice has entered a disqualification or the Clerk receives other instructions from the Court, e.g., the motion relates to a matter with which one Justice has already been substantially involved.

(2)Motion panels. A panel of three Justices is available to receive motions at all times. The motion panel is composed of the current motion Justice and the motion Justices from the preceding and succeeding months. If a member of the motion panel is disqualified, the next qualified Justice in rotation is added to the panel. The motion panels act in cases that have not already been assigned to a panel for disposition on the merits.

(3)Routine motions. During a given month, all newly filed routine motions are handled by, or under the supervision of, the motion Justice unless the motion Justice is disqualified in a particular case, or the case is being handled by another Justice.

(4) Extraordinary writs. The motion Justice also processes (to the extent judicial attention is required) those proceedings which may be filed in the first instance in the Supreme Court. The motion Justice also determines whether briefing or a hearing is required. See Supr. Ct. R. 43. Usually the State is directed to file a response to these motions. The Clerk's office is directed to ascertain whether the judicial officer wishes to be heard or represented.

(5)Procedure.

(a) Written requirement. All motions must be made in writing with the required notice provided to the opposing party. Any other contact with the Court regarding motions is confined to the Clerk's office or Chief Staff Attorney.

(b) No conference. Motions are routinely handled by the motion Justice without a conference or hearing.

(c) Special problems. When emergencies or other special problems arise, however, it is not inappropriate for an attorney to seek to set up a conference so that the attorney and opposing counsel may meet with the motion Justice. The request for such a conference should be made through the Clerk's office.

(6)Clerk of the Court. The Clerk is authorized, on behalf of the Court, to approve several types of motions, including unopposed motions to proceed in forma pauperis in criminal matters.

(7)Single Justice motions. The motion Justice is authorized to approve the following types of motions:

(a) automatic stay of execution required by statute or consistent with a prior en banc order in capital cases;

(b) certificate of reasonable doubt;

(c) changing the caption of an appeal, e.g., assigning pseudonyms;

(d) consolidating appeals;

(e) denying motion to affirm. Denial of such a motion simply puts the case back into the routine briefing schedule. Per Supreme Court Rule 25(a) (iii), the appellee's brief is then due within 20 days of the denial;

(f) expedite appeal upon consultation of others for availability;

(g) motion to proceed in forma pauperis;

(h) motion to proceed pro se. These motions are remanded for initial consideration by the trial court under Watson v. State, 564 A.2d 1107 (Del. 1989);

(i) motion for stay or supersedeas in a civil case;

(j) type-volume extensions of no more than 4,000 words for an opening or answering brief and 1,900 words for a reply. For unrepresented parties without access to a word processing program, page limit extensions of no more than 15 pages for an opening or answering brief and 7 pages for a reply. Motions for type-volume and page limit extensions are disfavored and will usually not be granted by the Court en banc beyond these limits in total;

(k)pro hac vice admission;

(l) seal records;

(m) substitution of parties;

(n) extension of time;

(o) unopposed rule to show cause; and

(p) motion to withdraw other than with a Rule 26(c) brief.

(8)Three-Justice motions. A single Justice may act on any motion that is not case-dispositive, including the motions specified above. But certain non-dispositive motions will also only be acted upon by a panel. Whenever a matter requires the affirmative vote of three Justices, the motion Justice circulates a proposed disposition in writing. Three-Justice matters include the following:

(a)amicus curiae status-granting or denying;

(b) certified questions-accepting or refusing;

(c) extraordinary writs-granting or denying;

(d) granting motions to affirm. Motions to affirm under Rule 25 are made after the opening brief is filed. Since such motions may result in a final ruling on the merits before full briefing is completed, they are screened by the motion Justice. Acting alone, the motion Justice may deny the motion. But a motion to affirm the trial court under Rule 25 may be granted only if three Justices vote to grant it. See Supr. Ct. R. 3(a);

(e) interlocutory appeals. If the trial court has not acted upon the request for an interlocutory appeal, the Clerk is directed to notify the parties that no action will be taken until the trial court acts and a supplemental notice of appeal is filed. Whether such a motion is granted or denied, it is acted upon by three Justices. Either order is electronically filed and provided to counsel and the trial court through File and Serve Xpress.

(f) motion to intervene-granting or denying.

(g) motion for reargument-granting or denying (same panel);

(h) stay of execution, other than automatic (only en banc); and

(i) motion to withdraw. When filed with a Rule 26(c) brief, such a motion is held in abeyance and is dismissed as moot if the State's motion to affirm is granted.

(9)Summary action.

(a)Sua sponte initiation. The Court, sua sponte or upon a motion by a party, may take summary action affirming, enforcing, or reversing the judgment or order appealed from if it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.

(b) Parties' positions. Before taking summary action, the Court will afford the parties an opportunity to submit argument in support of or in opposition to such disposition if briefs on the merits have not already been filed.

(c) Panel unanimity. Summary action may be taken only by a unanimous vote of the panel. If a motion panel determines that summary action is not appropriate at that time, it may, in lieu of denial, refer the matter to the merits panel without decision and without prejudice.

(10)Motions related to cases assigned to merits panels. Motions related to cases assigned to merits panels are generally granted or denied by the presiding Justice of the panel if they are merely administrative and unrelated to the disposition of the case, unless the presiding Justice believes a discussion by the entire panel is appropriate.

(11)Post-decision motions.

(a) A motion for extension of time for filing a petition for rehearing or for leave to file out of time is referred to the named author of the opinion or order, who has authority to grant the extension. If the author votes to deny, the motion is referred to the entire panel for disposition.

(b) A motion for stay of mandate or for the recall of the mandate, or certified judgment in lieu thereof, is processed by the presiding Justice.

(c) A motion to amend the judgment of the Court is referred to the panel.

Del. Sup. Ct. Int. Opp. P. XVIII

Adopted effective 6/18/2015; amended effective 11/9/2018.