IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD L. ABBOTT
Plaintiff,

v. C.A. No. N16A-09-009 FWW

DELAWARE STATE PUBLIC
INTEGRITY COMMISSION,

Defendant.

Submitted: November 6, 2017
Decided: February 28, 2018

Upon Petitioner’s Writ of Certiorari Regarding the Decision of the Delaware State
Public Integrity Commission:

AFFIRMED.

OPINION AN]_) ORDER

Richard L. Abbott, Esquire, Abbott Law Firm, 724 Yorklyn Road, Suite 240,
Hockessin, Delaware 19707; Pro Se Plaintiff.

Deborah J. Moreau, Esquire, Delaware State Public Integrity Commission, 410
Federal Street, Suite 3, Dover, Delaware 19901; Attorney for Defendant.

WHARTON, J.

I. INTRODUCTION

Plaintiff Richard L. Abbott (“Abbott”) Filed a Complaint alleging “claims for
a common law Certiorari Appeal and for Declaratory Judgment” challenging
Defendant Delaware State Public Integrity Commission’s (“PIC”) decision.1 Abbott
contends that the PIC exceeded its jurisdiction and erred as a matter of law When it
concluded that it did not have personal jurisdiction over Jennifer-Kate Aaronson,
Esquire_the subject of Abbott’s PIC complaint. Abbott further argues that the PIC’s
conclusion that it lacked subject matter jurisdiction for failure to allege an
appearance of impropriety Was an error of law.

On certiorari review, the Court must determine Whether the PIC: (i) exceeded
its jurisdiction; (ii) proceeded illegally or manifestly contrary to laW, or (iii)
proceeded irregularly. Upon consideration of the pleadings before the Court, the
record below, and argument, the Court finds that the PIC did not exceed its
jurisdiction, proceed illegally or manifestly contrary to law, or proceed irregularly.
Accordingly, the PIC’s decision is AFFIRMED.

II. FACTUAL AND PROCEDURAL CONTEXT
Plaintiff Abbott is a Delaware-barred attorney subject to the jurisdiction of the

Delaware Supreme Court and the Office of Disciplinary Counsel (“ODC”).2 Abbott

 

'Complaint, D.I. l.
2 Def.’s Ans. Br., D.I. 30, at 3.

Was referred to the ODC by Vice Chancellor Glasscock, a member of the bench in
the Court of Chancery, to determine Whether he had violated the Delaware Lawyer’s
Rules of Professional Conduct.3 Jennifer-Kate Aaronson (“Aaronson”), ODC’s
Chief Counsel, Was charged With the Abbott investigation.4 It is Aaronson’s
investigation Which led to Abbott’s complaint against Aaronson With the Delaware
State Public Integrity Commission.5

The PIC is an administrative agency charged With the oversight and
enforcement of 29 Del. C. Ch. 58, the State Employees’, Officers’ and Officials’
Code of Conduct (the “State Ethics Code”).6 The purpose of the State Ethics Code
is to guide government employees in the performance of their official duties while
also increasing Delaware’s citizens’ confidence in their government.7 lt is the duty
of the PIC to refer to PIC Counsel investigation of any alleged violation of the State
Ethics Code.8 The PIC then makes a determination on how to proceed With a
Complaint, be it disciplinary action or dismissal.9

On July 22, 2016, Abbott filed a Complaint With the PIC alleging that

Aaronson violated the Appearance of Impropriety standard, 29 Del. C. §5806(a), of

 

3 Plf.’s App. to Op. Br., D.I. 29, Ex. 4, at 2.
4Id. at l.

5 Id. at 2.

6 Def.’s Ans. Br., D.l. 30, at 3.

7 29 Del. C. § 5802.

8 29 Del. C. § 58()9(3).

9 Id.

the State Ethics Code in the course of her investigation and prosecution of Abbott.10

The Appearance of Impropriety standard is derived from 29 Del. C. § 5806(a), which
provides in pertinent part that “[e]ach state employee. . .shall endeavor to pursue a
course of conduct which will not raise suspicion among the public that such state
employee. . .is engaging in acts which are in violation of the public trust and which
will not reflect unfavorably upon the State and its govemment.”11 Abbott alleged
that Aaronson was a state employee within the meaning of § 5806(a),12 and that
Aaronson’s investigation of Abbott’s conduct had the Appearance of Impropriety
because she was “flaunting her position to carry out the personal vendetta campaign
of her fellow Judicial Branch member” and was motivated by her own professional
judicial ambitions.13

On August 24, 2016, the PIC dismissed the Complaint for lack of jurisdiction
and failure to properly allege a violation of the Code of Conduct.14 According to the
PIC, it lacked personal jurisdiction over Aaronson because the alleged conduct took
place while Aaronson was performing her professional duties as both an attorney

and as a state employee of the judicial branch, specifically the ODC.15 Aaronson’s

 

10 Plf.’s Op. Br., D.I. 29, at 5.

11 29 Del. C. § 5806(3).

12 Plf.’s Op. Br., D.I. 29, at 5-6.

13 Def.’s Ans. Br., D.I. 30, at 3.

14 Plf.’s App. to Op. Br., D.I. 29, Ex. 4, at 4.
15 Def.’s Ans. Br., D.I. 30, at 5.

attorney status immunized her from the PIC’s jurisdiction since attorney conduct is
governed by the Delaware Supreme Court.16 In addition, the PIC decided that even
if personal jurisdiction was proper, the Complaint failed to allege that the public
would perceive Aaronson to have engaged in an appearance of impropriety.17
Aaronson’s purported professional ambition, as well as the fact that others in
Aaronson’s position became judges was insufficient to substantiate the allegation of
a public perception of impropriety.18

On September 21, 2016, Abbott initiated a “Common Law Certiorari appeal”
of the PIC’s decision.19 However, on October 27, 2016, the PIC issued an Amended
Decision in which it undertook a “Reconsideration” of the Complaint and rendered
a new determination20 That decision held that “the Commission also found a lack
of jurisdiction because ODC does not meet the Code of Conduct’s definition of state
agency. 29 Del. C. § 5804(11)”.21 On October 31, 2016 a judge of this court ordered
that the Writ of Certiorari be allowed and ordered a return within 20 days of its
issuance by the Prothonotary.22 On November 3, 2016, the New Castle Prothonotary

issued “(2) writs” to the Kent Count Prothonotary to serve the PIC with the

 

16 Id.

17 Id.

18 Plf.’s App. to Op. Br., D.I. 29, Ex. 4, at 4.
19 Plf.’s Op. Br., D.I. 29, at 15.

20 Id.
21 Def.’s Ans. Br., D.I. 30, at 2.
22 D.I. l().

Complaint.23 The PIC was served on November 14111.24 On November 22“‘1, Abbott
filed an Amended Complaint, addressing the PIC’s October 27th Amended
Decision.25 The PIC submitted the Record on November 23“1 in response to the Writ

of Certiorari.26

III. THE PARTIES CONTENTIONS

Abbott contends that the PIC exceeded its jurisdiction and erred as a matter
of law in rendering its Decision. In particular, Abbott first takes aim at the PIC’s
ruling that it lacked personal jurisdiction over Aaronson due to her status as an
attorney, the Supreme Court’s power to regulate attorney conduct, and the
Separation of Powers Doctrine.27 Abbott argues that the PIC is without authority to
decide that its enabling statute is unconstitutional, and consequently must exercise
the mandatory jurisdiction delegated to it by the General Assembly.28 Abbott next
argues that the PIC was without jurisdiction to issue the Amended Decision.29 The
PIC, according to Abbot, was divested of further jurisdiction of the matter upon the

filing of the Complaint in this Court.3° Abbott then argues that Aaronson is a State

 

23 D.I. 4.

24 D.I. 3.

25 D.I. 5.

26D.I. 7.

27 Plf.’s Op. Br., D.I. 29, at 10-15; 32.
28 Id. at 11, 32.

29 Id. at 15-16.

30 Id.

employee subject to PIC jurisdiction, and the PIC erred in concluding otherwise.31
Lastly, Abbott maintains that the PIC erred in concluding that it lacked subject
matter jurisdiction because the Complaint provides sufficient facts to allege an
Appearance of Impropriety.32 As a result of the PIC’s errors of law and because it
exceeded its jurisdiction, Abbott requests that this Court reverse the PIC’s Decision
and Amended Decision, and remand for further proceedings.33

In response, the PIC first argues that it did not exceed its jurisdiction. Rather,
it declined to exercise jurisdiction and was within its legal authority and obligation
to so decide.34 Second, the PIC contends that it did not commit legal error in
reaching its Decision and Amended Decision.35 According to the PIC, it was served
notice of Abbott’s Certiorari Complaint on November 3, 2016 (after the Amended
Decision), therefore it had jurisdiction_and was not in error-to amend its Decision
until that time.36 The PIC also argues that its Decision that it did not have personal
jurisdiction over Aaronson Was not in error because court employees are not
regulated under the State Code of Conduct.37 Additionally, even if Aaronson was

subject to the Code of Conduct, her status as a lawyer would conflict with the Code’s

 

311a'. at 17-25.

32 Id. at 26-29.

33 Id. at 32.

34 Def.’s Br., D.I. 30, at 9-12.
33 Id. at 12.

36Id.at12-13.

37 Id. at 13.

applicability.38 Lastly, according to the PIC, Abbott’s Complaint lacked facts from
which it could conclude that Aaronson engaged in conduct which created an
Appearance of Impropriety.39 Therefore it did not err in dismissing the Complaint
for failure to properly allege a violation of the Code of Conduct.40 The PIC, based
upon its proper exercise of jurisdiction and error free Decisions, requests this Court
to affirm the dismissal of Abbott’s Complaint.
IV. STANDARD OF REVIEW

Abbott has no right of appeal from a decision of the PIC under the
Administrative Procedures Act or any other statute.41 The purpose of a writ of
certiorari is to permit this Court to review the record of a proceeding decided by a
lower tribunal.42 The Supreme Court has long made clear that “a writ of certiorari
is not a substitute for, or the functional equivalent of, an appeal.”43 The standard for

reviewing a petition for a writ of certiorari is “strictly limited”44: the reviewing court

 

381¢1'. at 14 -17.

39 1d.at17-18.

40 Id.

41 See 29 Del. C. § 1001, et. seq.

42 Christiana T own Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del.
D€C. 16, 2004).

43 Black v. New Castle Cty. Ba'. of License, 117 A.3d 1027, 1030 (Del. 2015)
(quoting Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1213
(Del.2008)) (internal quotation marks omitted).

44 See id. (quoting Matter of Butler, 609 A.2d 1080, 1081 (Del.1992)).

8

“may not weigh evidence or review the lower tribunal's factual findings.45 Likewise,
the reviewing court may not “consider the case on its merits.”46 The Supreme Court
has observed, that “[u]nder principles of law well established in this State, certiorari
involves a review of only such errors as appear on the face of the record being
considered.”47

By its nature, the extent of the record appropriate for review on a writ of
certiorari is limited: A certiorari proceeding differs fundamentally from an appeal
in that the latter brings the case up on its merits while the (former) brings up the
record only so that the reviewing court can merely look at the regularity of the
proceedings.48 The proper record for review is limited to the complaint initiating the
proceeding, the answer or response (if required), and the docket entries.49 Any

“evidence received in the inferior court is not part of the record to be reviewed.”50

 

43See id. at 1031 (quoting Reise v. Ba'. of Bla’g. Appeals of City of Newark, 746
A.2d 271, 274 (Del.2000); see also 395 Assocs. v. New Castle Crtty., 2006 WL
2021623, at *8 (Del.Super. July 19, 2006) (“The Court ‘may not review the
substantive decisions' nor may it ‘correct a mistake of facts or an erroneous
conclusion from the facts, even though the [tribunal's] interpretation of the facts or
law may have been erroneous.”’)).

40 See id. (quoting Christiarta T own Ctr., LLC v. New Castle Cnty., 2004 WL
2921830, at *2 (Del.2004)).

47 See ia’. (quoting Maa'a'rey, 956 A.2d at 1215).

43 See ia’. (quoting Shoemaker v. State, 375 A.2d 431, 437 (Del.l977) (internal
quotation marks omitted).

49 See id. (quoting Maa’drey, 956 A.2d at 1216) (internal quotation marks omitted).
30 See ia’. (quoting Du Portt v. Family Ct. for New Castle Crtty., 153 A.2d 189, 194
(Del.1959)).

The reviewing court is then limited to determining based on that limited record
whether the lower tribunal: “(i) exceeded its jurisdiction;” (ii) “proceeded illegally
or manifestly contrary to law”; or (iii) “proceeded irregularly.”31 Unless the Plaintiff
can so demonstrate, the Court shall uphold the decision below.
V. DISCUSSION
I. UPON FILING THE CERTIORARI APPEAL, THE PIC WAS DIVESTED
OF JURISDICTION TO AMEND ITS DECISION, THERFORE THE
COURT’S REVIEW IS LIMITED TO TI-IE PIC’S DECISION.

The Court first addresses the question when the PIC was divested of
jurisdiction because such a determination tailors the Court’s review. A petition for
writ of certiorari, like an appeal, is a procedure for securing review of a decision
below.52 A writ of certiorari is “not a substitute for, or the functional equivalent of,
an appeal.”33 However, certiorari is in the nature of the appellate process.34
Therefore, though they are not equivalent, certiorari and appeal are analogous

processes. The perfection (filing) of an appeal from the Superior Court to the

Supreme Court divests the Superior Court of jurisdiction over the action absent a

 

31 See ia'. (quoting Christiana T own Ctr., LLC v. New Castle Crity., 2004 WL
2921830, at *2 (Del. Dec. 16, 2004)).

32 Gola'stein v. City of Wilrnington, 598 A.2d 149, 152 (Del. 1991); see also
Woolley on Delaware Practice §900.

33 Black, 117 A.3d at 1030 (Del. 2015) (quoting Mada'rey, 956 A.2d at 1213).
34 14 Am. Jur.2d Certiorari § 2.

10

remand.35 Similarly the filing of a complaint in certiorari will divest the lower body
of jurisdiction when the complaint is filed.

Abbott filed his Complaint on September 21, 2016.56 The PIC issued its
Amended Decision_that the PIC also lacked jurisdiction over Aaronson because
ODC did not meet the Code of Conduct’s definition of State agency_on October,
27, 2016.57 lt follows then that upon the filing of Abbott’s Complaint on September
21, 2016, the PIC was divested of jurisdiction Accordingly, the PIC lacked
jurisdiction to amend its decision. The PIC argues that it was not served notice of
the Complaint until November 3rd and could therefore amend its Decision until that
time because perfection was not complete until formal notice. However, the PIC
cites no law to support its position and the Court finds nothing to support it either.
The Court holds that, just as a trial court loses the power to amend its order upon the

filing of an appeal because it has lost jurisdiction, so too the PIC lost its power to

 

33 Bowen v. EIDuPont de Nemours and Co., Inc., 879 A.2d 920, 922 (Del. 2005);
see also Raa'ulskt` v. Delaware State Hospital etc., 541 A.2d 562, 567 (Del. 1998)
(Upon filing of an appeal, a trial court loses the power to amend its order;
jurisdiction is lost.).

30 Pl. Opening Br., D.I. 29, at a.

37 The Amended Decision indicated “[I]n addition to a lack of jurisdiction over Ms.
Aaronson due to the Separation of Powers doctrine, the Commission also found a
lack of jurisdiction because ODC does not meet the Code of Conduct’s definition
of State agency. 29 Del. C. § 5804(11).”

11

amend its decision upon the filing of the Complaint.58 Accordingly, the Court’s
review will be limited to the PIC’s August 24, 2016 Decision.

II. ABBOTT FAILS TO DEMONSTRATE THAT THE PIC EXCEEDED ITS
JURISDICTION OR COMMITTED LEGAL ERROR.

A. The PIC Acted Within Its Jurisdiction.

The PIC did not exceed its jurisdiction because it was within its power to
decide not to exercise jurisdiction over Aaronson. The Supreme Court has generally
held that administrative agencies can determine their own jurisdiction in the first
instance.39 Additionally, when a statute authorizes an administrative agency to act
in a particular situation or where a mechanism for adequate judicial review is in
place, it is the general rule that an administrative agency may and must determine
whether it has jurisdiction in a particular situation.60

Here, the PIC first evaluated whether it had personal jurisdiction over
Aaronson. The PIC acted practically, and in accordance with law, to initially decide
whether Aaronson was subject to the statute before finding whether she was in

violation of it. Furthermore, since 29 Del. C. § 5809(3) authorizes the PIC to

 

33 Radulski, 541 A.2d at 567.

39 Iri re Stana'ara’ Gas & Elec. Co., 16 F.R.D. 221, 223 (D. Del. 1954) (citing
Petroleum Exploration, Iric. v. Public Service Commissiori of Kentucky, 304 U.S.
209; Federal Power Commission v. Metropolitan Ea'ison Co., 304 U.S. 375; Myers
v. Bethlehem Shipbuila'ing Corp., 303 U.S. 41 ; Davis, Administrative Law (1951),
Chapter 15).

30 2 Am. Jur. 2d Administrative Law § 275.

12

investigate alleged violations and § 5810A allows for appellate review of PIC
decisions finding any person in violation of Chapter 58.31 Therefore, because the
PIC is authorized to act and adequate judicial review is in place, the PIC was within
is legal power to determine its jurisdiction

The core of Abbott’s claim is that the PIC exceeded its jurisdiction. However,
the PIC did not to exercise jurisdiction at all. To the extent that Abbott claims that
the PIC exceeded its jurisdiction by answering a Constitutional question, Abbott fails
to specify that question, or the facts that from which the Court could evaluate such
a claim. Finding it that it did not have jurisdiction over Aaronson is not the same
thing as thing as the PIC finding its enabling statute unconstitutional Therefore, the
Court finds that the PIC did not exceed its jurisdiction when it determined not to
exercise jurisdiction over Aaronson.

B. The PIC Did N ot Commit an Error of Law in Concluding It Lacked
Personal Jurisdiction.

The PIC correctly determined that it does not have personal jurisdiction over
Aaronson because attorney discipline is outside the PIC’s authority. The PIC is
created, authorized, and empowered to oversee and enforce the State Ethics Code.32

It is the PIC’s duty to refer and investigate any State Employee, Officer, or Official

 

6' It appears that § 5810A limits appellate review to those found in violation of Ch.
58. Since Abbott was not found in violation of Ch. 58, he is limited to certiorari

review.
62 29 Del. C. Ch. 58,

13

who is alleged to have violated the State Ethics Code.33 There is no doubt that
Aaronson is a State employee. However, Aaronson is also acting as Disciplinary
Counsel. ln that respect the PIC does not have authority over her. The PIC’s
enabling statute, 29 Del. C. Ch. 58, has nothing to do with regulating attorneys.
Attomey discipline is not addressed in the statute and neither are any other attorney
related subj ects. Rather, such authority is reserved for and exclusive to the Delaware
Supreme Court.

The Supreme Court has the inherent power and authority over the regulation
of the legal pro,fession. 34 The Court maintains appropriate standards of professional
conduct for all lawyers subject to its jurisdiction, disposes of individual cases of
lawyer discipline and disability, and administers the lawyer disciplinary system.33
The ODC, of which Aaronson is Chief Counsel, is an arm of the Court which assists
in the regulation of legal practice by evaluating, investigating, and prosecuting
lawyer misconduct.33 ln so acting Aaronson undoubtedly falls under the regulation
and authority of the Supreme Court in the performance of her attorney discipline
duties. The PIC cannot and does not have the authority to the interject itself into

what is exclusively the Supreme Court’s domain.

 

33 29 Del. C. § 5809(3).

34 Delaware Lawyers ’ Rules of Disciplinary Procea'ure, I. Structure and Scope,
Rule l.

33 Ia'.

33 Sup. Ct. R. 64.

14

In addition, the practice of law not only seeks to regulate itself, but also strives
to insulate itself from the governmental influence at issue. The Delaware Lawyers’
Rules of Professional Conduct states, “[s]elf-regulation also helps maintain the legal
profession’s independence from government domination.”37 lf the PIC were to
exercise authority over Aaronson, as Abbot argues, it would invade the inherent
powers of the Supreme Court, frustrate the ODC’s purpose, and destroy the
independence the legal profession seeks. Abbott essentially asks the PIC to
investigate ODC’s investigation of lawyer misconduct. Validating such authority
would circumvent the procedure already in place and supplant the Supreme Court’s
authority over the legal profession. Any attorney under ODC investigation could
file a claim with the PIC to thwart the ODC. What Abbott poses is not and may not
be the case. The Supreme Court, not the PIC, has authority over attorneys and
attorney discipline and such power may not be inhibited. Therefore, the PIC
correctly decided that it lacked authority over Aaronson and did not have personal
jurisdiction

C. The PIC Did Not Commit an Error of Law in Concluding It Lacked
Subject Matter Jurisdiction.

The PIC also concluded that it did not have subject matter jurisdiction because

the Complaint lacked articulated facts demonstrating a violation of the Code of

 

37 Delaware Lawyers ’ Rules of Professional Conduct, Rule l l .
15

Conduct. Abbott argues that the PIC erred in misinterpreting the legal standard38
and that the Complaint sufficiently asserted an appearance of impropriety, a
violation of the Code of Conduct.39

Abbott alleges a violation of 29 Del. C. § 5806(a) which reads “[e]ach state
employee...shall endeavor to pursue a course of conduct which will not raise
suspicion among the public that such state employee. . .is engaging in acts which are
in violation of the public trust and which will not reflect unfavorably upon the State
and its govemment.” The test is regarded as an “appearance of impropriety”
standard.

Abbott correctly offers that the appearance of impropriety inquiry is
conducted from the point of view of the public informed of all the facts.70 Abbott
seemingly argues that the PIC did not address the public point of view in reaching
its conclusion. Contra Abbot, in reaching its conclusion, the PIC stated “the
Complaint lacks any facts to substantiate the allegation of a public perception of
impropriety” and “there are no facts to support the conclusion that an appearance of

impropriety exists among the public.”71 The PIC, therefore, expressly accounted for

public perception and correctly applied the legal standard,

 

33 Plf.’s Op. Br., D.I. 29, at 26.

39 Id.

70 Ial.

71 Plf.’s App. to Op. Br., D.I. 29, Ex. 4, at 4 (emphasis added).

16

Abbott also contends that the PIC erred because the Decision ignored the
gravamen of the Complaint which asserted an appearance of impropriety.72
Allegations of an appearance of impropriety require articulated facts sufficient to
raise suspicion among the public that such state employee is engaging in acts which
are in violation of the public trust and which will not reflect unfavorably upon the
State and its government73 The PIC comprehensively evaluated Abbott’s
Complaint, The PIC specifically addressed claims of Aaronson’s purported
professional ambition, the occupational history of those previously in Aaronson’s
position, and Aaronson’s professional judgment. The PIC found those claims to be
the product of speculation and projection. Additionally, the PIC concluded that the
entirety of the Complaint was based upon conjecture and colored by Abbott’s
personal interactions with Aaronson, The PIC, therefore, appropriately addressed
the evidence in its entirety and correctly concluded that the Complaint’s allegations
failed to state sufficient facts to support the appearance of impropriety claim.
Accordingly, the PIC did not err in dismissing the Complaint for lack of subject

matter jurisdiction

 

72 Plf.’s Op. Br., D.I. 29, at 26-28.
73 29 Del. C. § 5806(a).

17

VI. CONCLUSION
The Court finds that the PIC did not exceed its jurisdiction, proceed illegally
or manifestly contrary to law, or proceed irregularly. Therefore, the Decision of the

Commission is hereby AFFIRMED.

IT IS SO ORDERED.

 

 

Ferri W. Wharton, Judge

18

