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Lawmakers ask court for opinion on removing public officials

January 13, 2022 GMT

DOVER, Del. (AP) — House lawmakers on Thursday gave final approval to a resolution asking for guidance from Delaware’s Supreme Court as they decide how to respond to public corruption charges against the state auditor.

The resolution, approved by a voice vote after party-line passage in the Senate in November, asks the Supreme Court for an advisory opinion on how to interpret a never-used provision of the state constitution regarding the removal of officials from public office.

The provision states that the governor may “for any reasonable cause” remove any officer, other than the lieutenant governor or a member of the General Assembly, if two-thirds of the members of both the House and Senate ask him to do so.

But Democrats, who control both chambers of the legislature, have been reluctant to exercise their power under that provision, which provides little other guidance, other than that the cause of removal must be entered in legislative journals, and that the person being targeted must be notified of the reason for his or her removal, at least 10 days before either chamber of the General Assembly acts.

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Democratic State Auditor Kathy McGuiness, meanwhile, is scheduled to be tried in May on several criminal charges. McGuiness, who is responsible for rooting out government fraud, waste and abuse, was indicted in October on felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with state procurement laws.

McGuiness, 58, has maintained her innocence and has rejected calls by fellow Democrats to resign or take a leave of absence pending resolution of the criminal case.

The resolution approved by lawmakers asks the Supreme Court, among other things, whether “reasonable cause” could include an indictment, and whether the authority to remove a public official implies that there also is authority to take a lesser action, such as suspension. Lawmakers also want to know whether they would be required to conduct a hearing by one or both chambers before voting on asking the governor to remove a public official, and whether that official could attend any such hearing and offer evidence and testimony in his or her defense.

Lawmakers also want to know whether a decision by the governor to remove a public officer can be appealed.

The Senate resolution was put on hold in November after House members passed their own, similar resolution. The Senate scheduled a special session a week later to consider the House measure, but announced just hours before the scheduled vote that no session would be held, and that lawmakers had instead enlisted retired Supreme Court Justice Randy Holland to provide guidance.

Holland is the longest-serving justice in Delaware history and an expert on the state constitution.

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Lawmakers indicated in November that House and Senate leaders, working with Holland and Judiciary Committee members, would develop and submit findings by Jan. 11.

But Rep. Sean Lynn, a Democrat from Dover, said Thursday that lawmakers will continue working with Holland while awaiting an advisory opinion from the Supreme Court. Lawmakers want an opinion not just on the provision regarding removal of an official by the governor, but also on the impeachment powers of the House, an issue that is not mentioned in the resolution.

“After meetings with Justice Holland, House and Senate leadership, and Judiciary Committee chairs and vice chairs, determined that asking the Supreme Court for an opinion ... was the best course of action,” Lynn told fellow House members.

“These constitutional provisions are largely untested, and any exercise of these powers would be unprecedented,” he added.