Opinion
C.A. No. S11M-06-027 (THG).
September 2, 2011.
Stephen E. Simmons, Rehoboth, Delaware.
Kevin M. Baird, Esquire, Glenn C. Mandalas, Esquire, Michael J. Hoffman, Esquire, Dover, DE.
Dear Mr. Simmons and Counsel:
This letter decision memorializes the decision I entered in open Court granting Respondents' motion to dismiss the petition which Stephen E. Simmons ("Simmons") filed asking that a writ of mandamus be issued to the Town of Dewey Beach, Delaware ("Town" or "Dewey Beach") directing the Mayor to send his name to the Governor as the Town's choice for Alderman.
On June 11, 2010, the Dewey Beach Mayor was Commissioner Richard Solloway. The Commissioners were Marc Appelbaum, Diane Hanson, James Pryzgocki and Martin Seitz. The Town Council met that date. Item No. 16 was an Agenda Amendment, and it provided: "Discussion and possible approval of appointment of Stephen Simmons as Head Alderman due to resignation of Judge Martin Guberman." Town of Dewey Beach Minutes of June 11, 2010 6:00 PM Town Council Meeting at 2. The Minutes further reflect the following at page 2:
Commissioner Hanson made a motion to accept the agenda as amended. Commissioner Przygocki seconded the motion.
The motion carried unanimously.
Further details regarding this issue appear later at pages 10-11 of the Minutes:
16. Discussion and possible approval of appointment of Stephen Simmons as Head Alderman due to the resignation of Judge Marvin Guberman: Town Attorney Mandalas stated that after speaking with Linda on the Governors' [sic] Staff, that an appointment of Assistant Alderman to Alderman, would require and [sic] an appointment by Governor and this is a very involved process. The General Assembly might be able to vote at the Special General Assembly meeting in September, but the council could go forward with process now, if they so choose. Commissioner Hanson made a motion to appoint Stephen Simmons as the new Head Alderman. Commissioner Appelbaum seconded.
The motion carried unanimously.
The applicable provisions of the Code of the Town of Dewey Beach ("Code") provide as follows:
§ 5-1 Alderman Court.
The Alderman Court for the Town of Dewey Beach shall operate and have jurisdiction in accordance with this chapter and the provisions of Title 10, Delaware Code, § 1909.
§ 5-2 Qualification of Alderman and Assistant Alderman.
The Mayor shall nominate some qualified and suitable person to act as Alderman and may nominate some qualified and suitable person to act as Assistant
Alderman. Any person nominated by the Mayor to serve as Alderman or Assistant Alderman shall be at least 21 years of age, shall be of good character and reputation, and shall not be a member of the Commissioners of Dewey Beach or otherwise employed by the Town. Any person nominated by the Mayor to serve as Alderman or Assistant Alderman shall be nominated to serve for a term not to exceed two years and any such nomination shall be confirmed by a resolution of a majority of all members of the Commissioners of Dewey Beach. In accordance with the provisions of Title 10, Delaware Code, § 1909, such Nomination Resolution shall be forwarded to the Governor of the State of Delaware as a suggested candidate and the Governor may appoint said candidate, by and with the consent of a majority of all members elected to the Senate. The Alderman or the Assistant Alderman shall not serve beyond the appointed term unless renominated and reconfirmed in accordance with the section. The salary of the Alderman and Assistant Alderman shall be set by the Town Commissioners. [Emphasis added.]
In 10 Del. C. § 1909, it is provided as follows:
All judges of this State or any of its subdivisions shall be appointed by the Governor, by and with the consent of a majority of all members elected to the Senate, for such terms as shall be fixed by the Delaware Constitution or by state law.
For whatever reason, petitioner's name was not forwarded to the Governor as a suggested candidate.
On September 25, 2010, Dewey Beach held its annual elections. The makeup of the Commissioners became the current respondents in this lawsuit: Diane Hanson, Jim Laird, Marty Seitz, Rich Solloway, and James Przygocki. Diane Hanson is the current Mayor of Dewey Beach. Petitioner names as respondents the Town of Dewey Beach ("the Town") and the current Mayor and Commissioners. Thus, the person who nominated petitioner no longer is Mayor and the current group of Commissioners also differs from the group which voted to confirm him.
This information is a matter of public record.
Petitioner misspells Richard Solloway's last name as "Soloway".
On or about June 18, 2011, the Town Commissioners nominated John F. Brady, Esquire to be the Alderman and Peter K. Schaeffer, Jr., Esquire to be the Assistant Alderman. However, these names did not reach the Senate for confirmation before the 146th Legislative Session ended. On August 12, 2011, the Town Commissioners unanimously voted to withdraw Mr. Brady's name as Alderman and Mr. Schaeffer's name as Assistant Alderman.
On August 12, 2011, the current Town Commissioners unanimously passed a resolution at its meeting repealing the nomination of Simmons as Alderman.
Petitioner maintains that the writ should be issued to the Town directing the Mayor to forward the Petitioner's Nominating Resolution to the Governor of Delaware as required by law. The law he cites as supporting his position is the following portion of § 5-2 of the Code: "In accordance with the provisions of Title 10, Delaware Code, § 1909, such Nomination Resolution shall be forwarded to the Governor of the State of Delaware as a suggested candidate. . . . [Emphasis added.]"
The respondents have moved to dismiss this matter, arguing a writ of mandamus is inappropriate in this situation. Specifically, they argue that Simmons has failed to identify a non-discretionary legal duty as the law of mandamus requires. They argue that the Town Commissioners have the discretion not to forward the name and even if they did not, the matter now is moot because they have repealed the resolution. They also seek an award of attorneys' fees.
The general law regarding mandamus is as follows.
The writ of mandamus is a command in the name of the State or Sovereign, issued by a court of law having competent jurisdiction, to an inferior or lower court, to a tribunal or board, or to a corporation or person, requiring the performance of some duty named therein, said duty being attached to the official position of the party to whom writ is directed, or resulting from operation of law. [Citations omitted.]State ex rel. Lyons v. McDowell, 57 A.2d 94, 97 (Del. Super. 1947). As further explained in State ex rel. de Julvecourt v. PanAmerican Co., 61 A. 398, 400 (Del. Super. 1904), aff'd, 63 A. 1118 (Del. 1906):
It is well settled that it should not be granted for speculative purposes or to gratify mere idle curiosity, and that the purpose of the petitioner in asking for the writ must be a proper and reasonable one, and the interest which he seeks to protect must be such as to warrant and justify the remedy he invokes.
It is further provided in State ex rel. Waldman v. Miller-Wohl Co., Inc., 28 A.2d 148, 152 (Del. Super. 1942):
[A]ny interest sought to be secured or enforced by writ of mandamus must constitute a clear legal right existing in the relator at the time of the application. . . . Nor will the writ issue to enforce a right found to be in substantial dispute, or a right which is inchoate or prospective. [Citations omitted.] [Emphasis added.]
The writ must be issued against the persons who have the power to perform the duty. State ex rel. Volunteer Firemen's Relief Ass'n of Wilmington v. Mayor and Council of City of Wilmington, 118 A. 640, 641 (Del. Super. 1922). "[T]his court will not award the writ of mandamus, which if granted would prove nugatory and unavailing." Id.
A mandamus is not issuable a matter of right; instead, the Court's decision denying or granting it is based upon sound judicial discretion. Smith v. The Department of Public Safety of the State of Delaware, 1999 WL 1225250, * 13 (Oct. 26, 1999), aff'd, 765 A.2d 953, 2000 WL 1780781 (Del. Nov. 30, 2000) (TABLE). In Smith, this Court declined to exercise jurisdiction over the matter pursuant to a writ of mandamus because the "Plaintiff's complaint does not include allegations sufficiently egregious or compelling to warrant the Court interjecting in the routine disciplinary proceedings of a state agency." Id.
Furthermore, laches may bar the issuance of a writ. "The general rule seems to be that when there has been unreasonable delay in applying for the writ, and no excuse is shown for the delay, the court may in the exercise of its discretion refuse the application." State ex rel. Eakin v. Delaware Fire Co. No. 3 of Wilmington, 117 A. 129, 131 (Del. Super. 1922) (therein, the Court reviews various courts' rulings that laches barred petitions in cases where the petitioners waited to file from periods of 4 months up to eight years).
There are numerous reasons for denying the issuance of the writ in this case.
Petitioner requests that the order be issued to the Town. However, the Town is not the proper party. Instead, the proper parties are the Mayor who nominated him and the Council members who voted for the nomination. That group differs from the group currently governing Dewey Beach. The current Mayor and Commissioners do not have the obligation to perform the duty of forwarding the Nomination Resolution to the Governor. Thus, petitioner had no clear legal right to a writ as of the time he filed his application.
This same factual scenario supports a denial of the petition on the ground that laches bars the petition.
Even if the Court ruled in petitioner's favor on the above issues, it would deny the petition in a reasonable exercise of its discretion. A person nominated as an Alderman obviously is someone with whom the Mayor and a majority of the Commissioners have a comfort level. In this situation, the Mayor and Commissioners have voted unanimously to withdraw Simmons' name; they obviously have no comfort level in his being the Alderman. Furthermore, a nominated person has no vested right in becoming the Alderman even if the Mayor and Commissioners send his or her name to the Governor. The Governor could reject that person and not send his or her name to the Senate for confirmation. The Senate could refuse to confirm the person. There is no certainty that petitioner will become the Alderman even if this Court steps in and grants the requested relief. Thus, the Court's action in granting the petition may prove to be unavailing and nugatory. The Court would be meddling in an area that is within the domain of the Mayor and Commissioners. The interest petitioner seeks to protect, merely having his name sent to the Governor, does not warrant and justify the remedy of mandamus.
For the foregoing reasons, the Court dismisses the petition seeking the writ of mandamus.
I turn now to respondents' request that the Court award attorneys' fees from Simmons for filing this "frivolous" action along with other "frivolous" actions he recently has taken which are costing the Town money it does not have. They argue the bad faith exception to the American Rule entitles them to this relief.
Simmons' complaint borders on the frivolous. It is unfortunate that his actions have cost the Town money which would be better spent on other matters. However, because the bad faith exception is so stringent and because Simmons was able to grasp upon the "shall" language in § 5-2 of the Town's Code, I deny the request for attorneys' fees.
In conclusion, the petition is dismissed and respondents' request for attorneys' fees is denied.
IT IS SO ORDERED.