July 9, 2003

RE: House Bill 287

Dear Steve:

Thank you far your letter of July 8. 2003. 1 accept your apology that the failure of your office to advise me of this proposed legislation was inadvertent. I have known you for a good number of years, so I take you at your word that you did not intentionally ram this bill through the General Assembly at the eleventh hour in a stealth manner in order to evade vetting it with me, members of the Supreme Court, or any representatives of the Judicial Branch.

Nevertheless, the process that was followed in the drafting and rushing this bill through both houses was most unfortunate. Aside from the merits of the legislation, which I should not comment on, the language of the synopsis was misleading and intemperate. Moreover, consultation and deliberation might have fleshed out important death penalty issues and concerns about unintended consequences. You are quite correct, as noted in your letter, that the Attorney General’s policy, as expressed often to me, has been to notify us in advance of any proposed legislation that may affect the courts. This situation obviously violated that policy, as you imply.

I am, of course, a firm believer in the principle of separation of powers. Thus, if the Attorney General seeks legislation and the General Assembly agrees, so be it. The courts will deal with it. But in a civilized society—and I think Delaware is such a society—we should talk to each other in advance and not have to apologize later, blaming “the crush of business at the end of the legislative session,” as your letter rationalized.

The fact is that our decision in Garden was handed down over five months ago, on January 24, 2003, and Judge Babiarz’s decision on remand had been handed down on May 7, 2003, about seven weeks before June 25, 2003, when H.B. 287 was introduced. Incidentally, that decision is now on appeal in this Court. If the Attorney General was constrained to seek this legislation, I never knew about it. Although I was here and available most of the time in May and June, nobody informed me that this legislation was contemplated, drafted, introduced or passed. I first learned about it on Monday morning, July 7, 2003. There had been, throughout the winter and spring, plenty of time to vet these issues, even if it was deemed necessary (which is doubtful), to hurry legislation through this particular legislative session.

I will leave it at that, without any discussion in this letter of the potentially problematic legal issues inherent in this matter. There may be proceedings before our Court in which the issues arising out of the legislation may be implicated. I express only disappointment with the process by which this legislation and the synopsis was drafted by your office, without disclosure or vetting, and rushed through the General Assembly in a five day period at the very end of the session on this extraordinary schedule:

June 25, 2003 - Introduced in House

June 25, 2003 - Necessary rules are suspended in House

June 25, 2003 - Passed by House of Representatives

June 26, 2003 - Assigned to Judiciary Committee in Senate

June 30, 2003 - Necessary rules are suspended in Senate

June 30, 2003 - Passed by Senate

The people of Delaware are disserved by such tactics. When criminal statutes, particularly the death penalty statutes, are addressed legislatively, it is not fair to the legislators, the Governor or the public not to engage in a dialogue. Such a dialogue might address in advance the predicate for such legislation to be set forth in a proper synopsis, and avoidable problems that could otherwise arise in the future.

It is important, therefore, that the Attorney General and I re-establish and strengthen the lines of communication. We must be open and above board with each other so that we can rationally discuss proposed legislation before it becomes a fait accompli. I am certain that I will be discussing this process with the Attorney General at one or more of our regular meetings in the near future.

Because this legislation is pending, or soon will be pending, before the Governor for her consideration whether to sign, veto, or seek an opinion of the Justices, I believe it is in the public interest that she should be made aware of these issues. So, I am sending to her and her counsel a copy of our correspondence. Apart from the legal issues involved, the process used here implicates issues of orderly government, which may be relevant to her as she considers this legislation.

Yours sincerely,

E. Norman Veasey

Chief Justice