Posted: Feb. 3, 2016
A JUDICIAL JIGSAW OVER GEOGRAPHY
By Celia Cohen
There is trouble, right here in Delaware in Kent County. "Trouble" starts with "T," and that rhymes with "G," and that stands for "Geography."
Delaware is nothing if not about geography and the county someone comes from. People who cannot care less about race, religion, gender or sexual orientation can still balk at geography.
It means there is agitation in Kent County at the word that nobody living in Kent County made the cut to be considered as a replacement for a departing vice chancellor who sits in Kent County, although it is a little more complicated than it might initially seem.
John Noble, a vice chancellor in Kent County since 2000, is retiring on Feb. 26, and his exit will leave the Court of Chancery, the state's most storied court with its signature docket of corporate case law, with three members from New Castle County to the north, including Chancellor Andy Bouchard, one member to the south in Sussex County and no member for the county in the middle.
The choice of a new vice chancellor falls to Jack Markell, the Democratic governor, subject to confirmation by the state Senate, but Markell is somewhat hamstrung, because his nominee has to come from a list recommended by his Judicial Nominating Commission, which is responsible for screening applications.
The names sent to the governor are said to be Joe Slights, an ex-judge who sat on the Superior Court for 12 years before returning to private practice in 2012, and Joel Friedlander, a well-known corporate law practitioner. Both of them live in New Castle County.
The names are supposed to be confidential, but Delaware is too small to keep secrets. They always leak out, usually quietly, but in this case they seem to be everywhere, not least of it because of the Kent County situation.
It did not help that one of the candidates who did not make it out of the Judicial Nominating Commission is said to be Chuck Welch, who not only sits as a judge in Kent County on the Court of Common Pleas but used to be a Republican state representative from Kent County.
Now here is where it gets a little complicated over what constitutes a "real" Kent Countian.
Slights lives upstate, but his heritage is Kent County. His family was there for generations. In fact, he is the grandson of Vernon Derrickson, a lawyer and motel owner who was a powerful political figure as the chair of the Kent County Democrats for 20 years from the late 1940s to the late 1960s and a candidate for lieutenant governor in 1952.
Slights himself is a 1981 graduate of Dover High School and once had a summer clerkship at Schmittinger & Rodriguez, a Dover law firm, before he went north to practice law, mostly with Morris James in Wilmington, where he is now, and get a judgeship.
Slights is widely said to be open to relocating from Hockessin, where he lives now, back to Kent County, but it is apparently not good enough.
"I'm very disappointed there wasn't a Kent County name that was sent up. I thought Judge Welch had been doing a good job and was well-qualified," said Gary Simpson, the state Senate's Republican minority leader who lives in Milford, which straddles the Kent and Sussex county line, although he is from the Sussex side himself.
It should be noted the governor is not entirely locked into the candidates he has now, because he has the option of requesting a new list from the Judicial Nominating Commission. Simpson wants him to, but there were no clues forthcoming about Markell's thinking from Meredith Stewart Tweedie, the governor's chief legal counsel.
"It [the judicial vacancy] wasn't posted as Kent County-specific, because it's not a constitutional requirement, but he is certainly aware of that issue," Tweedie said.
Markell is expected to send his choice to the state Senate to be considered in March, after the legislature returns to Dover from its annual winter break for budget hearings.
It is hard not to wonder if politics could also be mixed up in this predicament, because this judicial opening is one of the scarce times when it could go to a Democrat or a Republican.
The state constitution is supposed to take out the politics by requiring the court system to be politically balanced, so usually it means a Democrat like John Noble would be replaced by another Democrat, but his departure leaves Chancery evenly split with two Democrats (Bouchard and Tamika Montgomery-Reeves) and two Republicans (Travis Laster and Sam Glasscock III.)
Welch is a Republican. The governor is a Democrat. The state Senate is Democratic.
Slights is a Democrat. As for Friedlander, the other Chancery finalist, he is a Democrat who used to be a Republican. Oops.
Not only is there this complication over what a "real" Kent Countian is, there can be another one over what a "real" Democrat is.
Not only was Friedlander a Republican, he did a turn as the president of the Delaware chapter of the Federalist Society, a club for conservative lawyers. He switched his party affiliation to Democrat in 2012, as state voter registration records show.
His political preferences are described as having evolved, as have his campaign contributions, which are written these days to people like Markell as well as Chris Coons, the Democratic senator, and Matt Denn, the Democratic attorney general.
Kent County has had its ups and downs with judgeships of late. For a while there, it could count on getting more than its customary share because of Ruth Ann Minner, the last governor, who was a Kent County Democrat.
Minner made Myron Steele, also a Kent County Democrat, the chief justice, and she also took away a New Castle County seat on the five-member Supreme Court to give it to Henry duPont Ridgely, a Kent County Republican. She named Jim Vaughn Jr., a Kent County Democrat, as the president judge of the Superior Court.
Then came a fade. Steele retired as chief justice and was replaced by Leo Strine Jr., a New Castle County Democrat. Ridgely moved to Sussex County before his retirement. Kent County only got a seat on the Supreme Court again when Markell appointed Vaughn as a justice.
It has left Kent County chasing its glory days and defending what a "real" Kent Countian is.
Typical Delaware. It is a place where people think that not only can the boy be taken out of the county, but the county can be taken out of the boy.