      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SAMUEL L. GUY, City Council     )
Member at Large of the City of  )
Wilmington,                     )
                                )
                Petitioner,     )
                                )
             v.                 )        C.A. No.: N19C-11-064 AML
                                )
CITY OF WILMINGTON, a municipal )
corporation,                    )
                                )
                Respondent.     )


                        Submitted: February 13, 2020
                          Decided: May 15, 2020

           Upon Respondent’s Motion to Dismiss: GRANTED
     Upon Petitioner’s Motion for Partial Summary Judgment: MOOT


                       MEMORANDUM OPINION

Samuel L. Guy, Esquire, of The Law Office of Samuel L. Guy, Wilmington,
Delaware, Petitioner.

Daniel A. Griffith, Esquire, and Kaan Ekiner, Esquire, of WHITEFORD TAYLOR
PRESTON LLC, Wilmington, Delaware, Attorneys for Respondent.




LeGROW, J.
      This dispute arises from contested votes on three resolutions that were

considered during a November 2019 Wilmington City Council meeting. Petitioner

is an elected member-at-large of the Wilmington City Council. A simple majority

of the City Council approved the resolutions, but the Council president declared the

resolutions defeated because they did not receive supermajority approval, which the

City Council president concluded was needed under the Council’s rules. The parties

disagree as to whether the relevant resolutions required (i) a simple majority vote of

all City Council members, or (ii) a two-thirds supermajority vote because the

resolutions were in derogation of a City Council member’s existing rights or

privileges.

      The respondent’s motion to dismiss requires this Court to resolve three issues.

First, does the case present a justiciable controversy? Second, if justiciable, does the

rule requiring a supermajority vote contradict the city charter? Finally, if the

supermajority rule is valid, did it apply to the resolutions at issue? For the reasons

that follow, I conclude respondent’s motion to dismiss should be granted because,

although the case presents a justiciable controversy, the rule requiring a

supermajority vote to amend certain rules does not violate the city charter, and the

defeated resolutions fell within the rule requiring a supermajority vote.
               FACTUAL AND PROCEDURAL BACKGROUND

       Respondent, the City of Wilmington (the “City”), is a Delaware municipality

organized under the Wilmington City Charter (the “Charter”).1                    The City’s

legislative functions are invested in the City Council (the “Council”), which consists

of 13 members: the Council President (the “President”), eight members elected from

separate geographical districts, and four members elected from the City at large.

       Section 2-104 of the Charter empowers the Council to “determine its own

rules and order of business, provide for such committees as it deems necessary[,]”

and “employ and fix the salaries of such persons as may be necessary for a proper

discharge of its business.” On January 3, 2017, the Council adopted The Council of

the City of Wilmington Rules (the “Rules”),2 which govern the Council’s actions

while conducting business, including meeting procedures and voting processes.

Rule 8, which governs resolutions, provides that the “vote of a majority of the

members in attendance and voting shall prevail unless otherwise provided by these

rules or the provisions of the City Charter.” Rule 23 additionally provides that “[n]o

rule may be suspended or amended in derogation of an existing right or privilege of

any member, except by a two-thirds vote of all the members of Council.”




1
  Wilmington City Charter (hereinafter “Charter”), https://library.municode.com/de/wilmington/
codes/code_of_ordinances?nodeId=ORCHBOWI.
2
  Stipulated Facts, Ex. 9 Rules of Wilmington City Council (hereinafter “Rule”). This exhibit
reflects the most recent revised version dated Nov. 1, 2019.
                                              2
       The Council holds bi-monthly meetings. During the November 1, 2019

Council meeting, four resolutions were presented for the Council’s consideration.

Resolution 4727, which expanded the public comment period during Council

meetings, was voted on and adopted.3 The other three resolutions, however, were

voted upon but deemed defeated because they did not receive a supermajority of

votes (collectively, the “Defeated Resolutions”): (i) Resolution 4728, which would

allow the public to address the Council on any topic, not just those on the agenda,

during Committee of the Whole meetings; (ii) Resolution 4729, which would

establish a Personnel Committee to oversee personnel-related matters with the

Council and throughout the City at large; and (iii) Resolution 4730, which clarified

that the hiring, firing, change of pay rate, or discipline of a Council staff member

required Council approval.

       The Defeated Resolutions each received seven “yea” votes.4 Petitioner,

Council Member-At-Large Samuel L. Guy, contends the Defeated Resolutions

received a sufficient majority of votes, seven Council members, to render the

Defeated Resolutions adopted, and that a two-thirds supermajority was not required.




3
  Stipulated Facts, Ex. 3 Recorded Roll Call Votes of the Special City Council Meeting (Nov. 1,
2019). Resolution 4727 received seven “yea” votes and four “nay” votes with one abstention and
one “present.”
4
  Id. Resolutions 4728 and 4730 received five “nay” votes with one abstention. Resolution 4729
received four “nay” votes with one abstention and one “present.”
                                              3
The City contends Rule 23 applies to the Defeated Resolutions and therefore they

only could be adopted with a supermajority vote.

       On November 7, 2019, Petitioner filed this action seeking a declaratory

judgment that Council members are authorized to amend the Rules through their

rights under the Charter, and that seven Council members constitute a sufficient

number of votes to adopt the Defeated Resolutions. Petitioner simultaneously filed

a motion for partial summary judgment reiterating the relief sought in the complaint.

The City then filed a motion to dismiss the complaint for non-justiciability and

failure to state a claim. The parties simultaneously briefed and argued those motions.

       The City contends Petitioner’s claims are non-justiciable because the

complaint raises a political question and “seeks to entangle the judiciary in a purely

intra-legislative dispute.”5     The City also argues that, even if the claims are

justiciable, the complaint must be dismissed as a matter of law because the plain

language of the Rules and Charter show that the resolutions properly were defeated.

Petitioner, on the other hand, argues the claims are justiciable because the complaint

does not raise a political question, but simply asks the Court to determine the

applicable voting standard for Council resolutions. Petitioner contends he is entitled

to summary judgment on the merits of his claims because Rule 23 is in derogation



5
 Def. City of Wilmington’s Opening Br. in Supp. of its Mot. to Dismiss Pl.’s Compl. (hereinafter
“Def.’s Mot.”) 3.
                                               4
of Section 2-201 of the Charter and, under Section 2-201, the Defeated Resolutions

received a majority vote and therefore were approved.

       Petitioner’s motion for summary judgment raises the same issues as the

motion to dismiss. For the reasons that follow, the City’s motion to dismiss is

granted because the complaint fails to state a claim. The Petitioner’s motion for

summary judgment therefore is moot.

                                       ANALYSIS

       The Court first must determine whether Petitioner’s complaint presents a

justiciable controversy because the Court’s jurisdiction is a threshold inquiry.6 If

the case is justiciable, the Court then may consider the merits of Petitioner’s claims.

I.     The case presents a justiciable controversy.

       Petitioner seeks a declaratory judgment that the Defeated Resolutions validly

were adopted because (1) the supermajority voting rule in Rule 23 contravenes the

Charter when applied to votes on Council resolutions, or (2) if Rule 23 applies to

resolutions, the Defeated Resolutions do not derogate a Council member’s existing

rights or privileges and therefore do not require a supermajority vote.




6
 See Crescent/Mach I Partners L.P. v. Dr Pepper Bottling Co. of Texas, 962 A.2d 205, 208 (Del.
2008); see also Baier v. Upper New York Inv. Co. LLC, 2018 WL 1791996, at *5 (Del. Ch. Apr.
16, 2018); K&K Screw Prods., L.L.C. v. Emerick Capital Invs., Inc., 2011 WL 3505354, at *6
(Del. Ch. Aug. 9, 2011).
                                              5
       In Delaware, a justiciable controversy must exist before a court can address a

pending dispute.7 In recognition of the separation of powers between the three

branches of government and the need for each branch to operate independently

within their constitutionally conferred field of activity, courts generally consider

“political questions” to be non-justiciable. Cases that present “political questions”

bear at least one of the following attributes: (1) “a textually demonstrable

constitutional commitment of the issue to a coordinate political department; or a lack

of judicially discoverable and manageable standards for resolving it;” (2) “the

impossibility of deciding [the issue] without an initial policy determination of a kind

clearly for nonjudicial discretion;” (3) “the impossibility of a court’s undertaking

independent resolution without expressing lack of the respect due coordinate

branches of government;” or (4) “an unusual need for unquestioning adherence to a

political decision already made; or the potentiality of embarrassment from

multifarious pronouncements by various departments on one question.”8

       The City contends the claims are non-justiciable because the complaint raises

a political question.9       The City argues the complaint does not “invoke any

constitutional protections or rights that have purportedly been violated” that would




7
  Crescent, 962 A.2d at 208.
8
  State, ex rel. Oberly v. Troise, 526 A.2d 898, 904 (Del. 1987); see Baker v. Carr, 369 U.S. 186,
217 (1962).
9
  Def.’s Mot. 4.
                                                6
“justify judicial involvement[,]” there is a “textually demonstrable commitment as

to the Council’s plenary authority not only to legislate, but also to determine its rules

and enforcement mechanisms[,]” and judicial intervention would have a “slippery

slope” effect due to the “lack of limitations for inclusion or exclusion for the remedy

sought” by Petitioner.10

        In its argument, the City relies upon State, ex rel. Oberly v. Troise11 and

Pellegrino v. O’Neill.12 In Troise, the State Attorney General sought to test the

validity of the Governor’s full-term commissions issued without the consent of the

Senate after the Senate failed to act on the Governor’s nominations for a prolonged

period of time.13 The issue required the Court to interpret Article III, Section 9 of

the Delaware Constitution, which allows the Governor to appoint certain public

officials based on the majority consent of the Senate.14 The Delaware Supreme

Court ultimately opined the issue was justiciable because it turned on the meaning

of a constitutional provision.15 The Court ruled the commissions invalid because

Article III, Section 9’s plain language “clearly assign[ed] the confirmation power to

the Senate[.]”16



10
   Id. at 6-9.
11
   526 A.2d 898.
12
   480 A.2d 476 (Conn. 1984).
13
   526 A.2d at 899.
14
   Id. (citing Del. Const. art. III, § 9).
15
   Id. at 905.
16
   Id.
                                             7
       In reaching its decision on justiciability, the Troise Court considered the

Connecticut Supreme Court’s decision in Pellegrino, a declaratory judgment action

that sought appointment of more civil trial judges “in order to implement the

constitutional right to justice without delay[.]” 17 The relief sought would have

required the judiciary to compel the legislature to create additional judgeships. The

Connecticut Supreme Court held the issue non-justiciable because of a textually

demonstrable commitment to the legislature in determining the number of and

appointment of judges. The Connecticut court concluded judicial involvement

would encroach upon the province of the legislature.18

       Troise and Pellegrino generally stand for the proposition that when the

question at issue requires the Court to interpret a statute or rule, that question is not

a political question because the judicial branch’s function is to interpret the law.19

For example, in Smith v. Sussex County Council, the petitioner sought a judicial

determination that a challenged ordinance validly was adopted, and the Court

considered the issue because it required judicial interpretation of a statute.20

Additionally, in duPont v. Director of Div. of Revenue of Dept. of Finance, the Court


17
   Pellegrino, 480 A.2d at 477.
18
   Id. at 484 (“We have declared ourselves unable to respond to its demand in the present context
without exceeding our own constitutional authority. The answer must lie in the hearts and minds
of the legislators, who are sworn to support the state as well as the federal constitution and to
discharge their duties to the best of their abilities. More fundamentally, it must rest with the people
who elect them.”) (internal citations omitted).
19
   Marbury v. Madison, 5 U.S. 137 (1803).
20
   632 A.2d 1387 (Del. Ch. July 13, 1993).
                                                  8
stated “the power of the [legislature] . . . is subject to constitutional restrictions,

whether express or necessarily implied . . . , and, in an appropriate case, it is the duty

of the Court to define such restrictions.”21

         The question of whether Rule 23’s supermajority vote requirement

contravenes the Charter is justiciable because it requires the Court to interpret the

Charter. This interpretation does not impermissibly intertwine the judiciary with the

legislative branch’s power.           There is no textually demonstrable constitutional

commitment of this issue to another branch, and, unlike the questions before the

courts in Troise and Pellegrino, there are well-defined judicial standards by which

courts routinely interpret statutes and rules.

         Petitioner’s second question presents a closer issue as to justiciability. The

Charter imbues the Council with the authority to adopt and enforce its own rules,22

and in order to enforce the Rules, the Council necessarily must interpret them.

Although Petitioner complains that without court intervention the President will

have unfettered authority to defeat any resolution under the guise of requiring a

supermajority vote, that argument ignores the separation of powers and the

principles of an electoral system of government. As the Troise Court cautioned,

courts must be careful not to insert themselves in resolving a political question that



21
     347 A.2d 653, 657 (Del. 1975).
22
     Charter § 2-104.
                                               9
would “entangle the judiciary in a political thicket, and might ultimately indicate a

‘lack of the respect due coordinate branches of government.’”23 In the present case,

the mechanism for controlling the President ultimately lies with the electorate

through the democratic process. But, determining whether Rule 23 applies to the

Defeated Resolutions does not require the Court to resolve the dispute based on

standards that are not judicially manageable, nor does it require the Court to make

policy decisions, which necessarily are reserved for the other branches.

       The Court need not, however, conclusively determine whether the second

question is justiciable because, even if it is justiciable, it is clear that the case should

be dismissed under Superior Court Rule 12(b)(6).

II.    The complaint fails to state a claim for declaratory relief.

       On a motion to dismiss, the Court must determine whether the plaintiff “may

recover under any reasonably conceivable set of circumstances susceptible of

proof[.]”24 A court may grant the motion if “it appears to a reasonable certainty that

under no state of facts which could be proved to support the claim asserted would

[the] plaintiff be entitled to relief.”25 When applying this standard, the Court will




23
   526 A.2d at 905 (citing Baker, 369 U.S. at 217).
24
   Holmes v. D’Elia, 2015 WL 8480150, at *2 (Del. Dec. 8, 2015) (quoting Spence v. Funk, 396
A.2d 967, 968 (Del. 1978)).
25
   Fish Eng’g Corp. v. Hutchinson, 162 A.2d 722, 724 (Del. 1960).
                                            10
accept as true all non-conclusory, well-pleaded allegations26 and must draw all

reasonable factual inferences in favor of the non-moving party.27

     A. The supermajority vote required to amend certain rules does not violate
        the Charter.

       The interplay between Rule 23 and Section 2-201 of the Charter requires the

Court to construe both provisions. Delaware courts follow settled principles of

statutory interpretation, which require giving effect to the plain language of an

unambiguous rule or statute.28 When a statute is clear and unambiguous, statutory

interpretation is not needed as courts “have no authority to vary the terms . . . or

ignore mandatory provisions.”29 A statute only is ambiguous if “it is reasonably

susceptible to different interpretations, or if giving a literal interpretation to the

words of the statute would lead to an unreasonable or absurd result that could not

have been intended by the legislature.”30

       Rule 23 states that “[n]o rule may be suspended or amended in derogation of

an existing right or privilege of any member, except by a two-thirds vote of all the

members of Council.” Petitioner argues that Rule 23 contradicts Section 2-201,



26
   Pfeffer v. Redstone, 965 A.2d 676, 683 (Del. 2009).
27
   Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (citing Ramunno v. Cawley, 705 A.2d 1029, 1034
(Del. 1998)).
28
   Ovens v. Danberg, 149 A.3d 1021, 1024 (Del. 2016).
29
   Board of Adjustment of Sussex Cty. v. Verleysen, 36 A.3d 326, 331 (Del. 2012) (quotations and
citations omitted).
30
   Evans v. State, 212 A.3d 308, 314 (Del. Super. 2019) (quoting Arnold v. State, 49 A.3d 1180,
1183 (Del. 2012)) (internal quotations omitted).
                                              11
which only requires a simple majority vote of Council members. Section 2-201 of

the Charter, however, applies to the “consideration and passage of ordinances.” The

Charter expressly distinguishes between resolutions and ordinances.31 Although

Petitioner argues Section 2-201 applies to all Council votes, he offers no textual

support for that position, and there is no ambiguity in Section 2-201’s scope. The

Defeated Resolutions are not ordinances, and Rule 23’s requirement for a

supermajority vote for certain resolutions therefore does not conflict with Section 2-

201. By requiring a majority vote of all the members of the Council, including the

President, in order to adopt an ordinance, the Charter does not restrict the Council’s

ability to adopt rules requiring some greater or lesser vote in order for the Council

to act by resolution.

     B. On their face, the Defeated Resolutions are in derogation of an existing
        right or privilege of a Council member.

       Finally, Petitioner argues that Rule 23’s supermajority provision did not apply

to the Defeated Resolutions. Petitioner’s argument, however, is unpersuasive.

Resolutions 4728, 4729, and 4730 each would restrict or alter an existing right or

privilege of a Council member.          Resolution 4728 would have expanded the

permissible scope of public comment during Council meetings, allowing the public



31
   Compare Charter § 2-304 (titled “Authentication, recording, codification and printing of
ordinances”), with id. § 2-403 (“the council by resolution may employ, or authorize the
employment by its committees”).
                                            12
to comment on any topic without limitation. This resolution is contrary to the

President’s existing power under Rule 332 to establish and enforce rules for speakers

to ensure proper decorum. Robert’s Rules of Order, adopted in Rule 25,33 define

decorum as confining remarks to the issues at hand.34

       Resolution 4729 sought to add a personnel committee to the standing

committee, name the Chair of the newly formed committee, and give the President

Pro Tem the authority to name members to that committee. Rule 12, however,

establishes that the President has the power to appoint special committees, and Rules

10 and 11 state the President has the authority to appoint committee chairs and vice

chairs and to oversee all committees. Resolution 4729’s adoption would change the

President’s existing rights and obligations, as it would require the President to

preside over an additional committee and remove the President’s right to name the

committee’s chair and the committee’s other members.

       Finally, Resolution 4730, if adopted, would have established that the Council

can hire, fire, and change the pay rate for staff.               That new resolution would

contravene Resolution 17-002,35 which establishes that the President has the sole



32
   Rule 3 (“The President shall establish and enforce rules for speakers to ensure proper decorum
is maintained including, but not limited to, enforcing the three-minute time-limit for each speaker
and/or prohibiting the use of obscene or profane language.”).
33
   Rule 25 (“All questions of parliamentary procedure not provided for in these rules shall be
decided in accordance with the latest edition of Robert’s Rules of Order.”).
34
   Stipulated Facts, Ex. 11 Robert’s Rules of Order (11th ed.).
35
   Stipulated Facts, Ex. 8 Resolution 17-002 (Jan. 3, 2017).
                                                13
authority to fire staff. Accordingly, all three resolutions would have abridged the

President’s existing rights and therefore fell within Rule 23’s supermajority voting

requirement.

III.   Petitioner’s partial motion for summary judgment is denied as moot.

       Petitioner’s motion for partial summary judgment seeks judgment as a matter

of law that Rule 23’s supermajority voting requirement is invalid in light of Section

2-201 of the Charter, or that the Defeated Resolutions did not require a supermajority

vote. This Court’s decision granting the City’s motion to dismiss resolves both

issues in the City’s favor and therefore renders Petitioner’s partial motion for

summary judgment moot.

                                  CONCLUSION

       For the foregoing reasons, the City of Wilmington’s Motion to Dismiss is

GRANTED, and Samuel L. Guy’s Motion for Partial Summary Judgment is

DENIED AS MOOT. IT IS SO ORDERED.




                                         14
