Justice Traynor writing for a unanimous, en banc court, ruled that former Town of Newport (“Newport”) Police Chief Michael Capriglione could take office as a Newport Town Commissioner in Capriglione v. State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General, No. 138, 2021 (Del. Oct. 1, 2021). The Court overruled a Superior Court decision that prevented him from taking office. The Superior Court ruled Town Commissioner Capriglione was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution. The Supreme Court held, however, that “under Section 21, only felonies can be disqualifying ‘infamous’ crimes.
Background
As previously discussed here on April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner. Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor. On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot. A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision. As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.
The Constitution
The Delaware Constitution provides:
No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.
The Delaware Supreme Court’s Interpretation
In interpreting this provision, the Supreme Court analyzed the text, historic intent, and precedent. The Court homed in on two portions of the text. First, the Court noted that the provision did not include reference to “or misdemeanor,” as the impeachment provision does elsewhere in the Constitution. Second, the Court noted the delineated crimes were all felonies or punishable by more than one year when the provision was drafted in 1987. The Court also looked to the convention debates and found that the discussion focused on felonies. The Court found “the constitutional text and the historical evidence of its understanding strongly suggest that Section 21’s ‘infamous crimes’ bar did not encompass offenses that were not felonies or punishable by more than one year in prison.” However, the Court did not find this dispositive and went on to analyze the existing case law interpreting the provision.
The Court discussed and analyzed numerous decisions from both the Supreme Court and the Superior Court that applied Section 21. The Court concluded “before this case, Delaware’s Section 21 jurisprudence uniformly indicated that only felonies can be infamous crimes. And although we have never explicitly announced this rule as a holding, we do so today.” It is important to note, however, that not all felonies are necessarily infamous crimes. The Court indicated “the totality of the circumstances” test is still good law in determining whether the felony is an infamous crime, because the section is a “character provision” with a “demanding norm.”[1]
Newly Added Importance
This decision and the Supreme Court’s discussion of the precedents took on added importance on October 11, 2021, when a grand jury indicted Delaware State Auditor Kathleen McGuiness on two felony and three misdemeanor counts.[2] Auditor McGuiness pleaded not guilty to all charges. These charges appear to represent the first time a statewide elected official has been indicted on felony charges while in office.
How does this decision impact the State Auditor?
- First, the decision notes “that Section 21 only applies to final judgements of conviction.” This suggests the State Auditor may remain in office under this provision, while her charges are pending.
- Second, should the parties seek to resolve the matter with a plea, a guilty plea solely on the misdemeanor charges would be insufficient to invoke Section 21. But a guilty plea or conviction on the felony charges would trigger the totality of the circumstances analysis. Additionally, the theft charge, related to her daughter’s state paychecks allegedly being deposited into a joint account owned by the two of them, could be considered embezzlement under the constitutional provision.
- Third, this decision could inform analysis of another Delaware Constitutional provision using the term “infamous crime.”[3] The Constitution further provides that “[a]ll public officers shall hold their offices on condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.”
The potential application of the Supreme Court’s decision to the Auditor’s indictment could become in a moot point if the General Assembly seeks to remove the Auditor under Article III, Section 13 of the Delaware Constitution for “any reasonable cause.” This provision gives the Governor power to remove an officer from office for any reasonable cause upon a 2/3 vote of both Houses of the General Assembly. Accordingly, there may be a political resolution to this issue before a resolution of the criminal matter.
[1] In re Request of the Government (Pupukayi), 950 A.2d 651, 657 (Del. 2008). However, 15 Del. C. § 7555(c)(1) prevents felons from holding municipal offices as a default rules unless a town’s charter says otherwise.
[2] The charged crimes relate to allegations that the Auditor hired and supervised her daughter, whose state pay checks went into a joint bank account owned by the two of them, and alleged procurement violations for contracts with a political consulting group. Additionally, she was charged for alleged conduct surveilling the conduct of potential witnesses against her.
[3] Art. XV, Sec. VI.