April 7, 2015
SHAWN BRITTINGHAM, and CHRISTOPHER STORY, Petitioners Below, Appellants,
TOWN OF GEORGETOWN, municipal corporation, WILLIAM TOPPING, Chief of Police for the Town of Georgetown, and RALPH HOLM, Captain of Police for the Town of Georgetown, Respondents Below, Appellees
Submitted: March 11, 2015.
Case Closed April 23, 2015.
Court Below: Superior Court of the State of Delaware, in and for a Sussex County. C. A. No. S10M-09-023-RFS.
Bruce A. Rogers, Esquire (argued), Law Offices of Bruce A. Rogers, Georgetown, Delaware, for Appellants.
James E. Liguori, Esquire, and Gregory A. Morris, Esquire, Liguori & Morris, Dover, Delaware; Stephani J. Ballard, Esquire (argued), Law Offices of Stephani J. Ballard, LLC, Wilmington, Delaware, for Appellees.
Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
In this appeal, we are asked to consider whether the Superior Court abused its discretion by declining to exercise its mandamus jurisdiction to remedy various alleged violations of the Law Enforcement Officers' Bill of Rights (" LEOBOR" ). Petitioners-below Shawn Brittingham (" Brittingham" ) and Christopher Story (" Story" ) (collectively, the " Appellants" ) sought mandamus relief for several alleged violations of LEOBOR while they were police officers with the Georgetown Police Department (" GPD" ). Respondents-below Town of Georgetown (" Georgetown" ),
Georgetown Chief of Police William Topping (" Chief Topping" ), and Captain Ralph Holm (" Captain Holm" ) (collectively, the " Appellees" ) moved for summary judgment. The Superior Court granted the motion, thereby denying Brittingham and Story's petition for a writ of mandamus.
On appeal, Brittingham and Story argue that the process afforded them did not comply with LEOBOR, and that their only remedy is a mandamus writ ordering vacatur of the resulting disciplinary decisions. Appellees respond that they did not violate LEOBOR, that Appellants' claims are now moot, and that the Superior Court did not abuse its discretion in denying the requested relief. We find that Brittingham and Story are correct that a technical violation of LEOBOR occurred, but we reject their claims as to all other alleged violations. However, as to the one meritorious claim, the matter is moot because neither Brittingham nor Story are presently employed by the GPD, and because the relief they seek is not relief that is available to them in a mandamus proceeding. Accordingly, for the reasons stated herein, we AFFIRM the Court's decision below as to all claims but one, and as to that claim, we hold that the claim is moot.
FACTUAL AND PROCEDURAL HISTORY
During the relevant time periods, Brittingham and Story were police officers employed by Georgetown in the GPD. In 2007, Chief Topping issued an oral order prohibiting GPD officers from meeting or speaking with the mayor or members of the Town Council to discuss internal police business without first obtaining his permission and going through the chain of command. In spite of this order, on December 23, 2009, seven off-duty officers met with Town Council Member Sue Barlow (" Barlow" ) at her home to discuss police department issues.
The scope of Chief Topping's order and the subjects discussed at the meeting have been the principal focus of a separate civil action and appeal, and were thoroughly examined in a separate opinion of the Superior Court, which we have affirmed in a separate Order.
When Captain Holm learned of the meeting, he informed Brittingham, Story, and the other officers involved that they were being investigated for violating GPD Rules and Regulations. Chief Topping requested that the Dover Police Department send someone to do the internal investigation because so many GPD officers were either under investigation or otherwise involved in the matter. The Dover Police Chief assigned Sergeant Eric Richardson for this purpose. On March 18, 2010, the officers under investigation were provided with a Notification of Professional Standards
Inquiry. Sergeant Richardson interviewed each of the officers involved. Transcripts of those interviews were submitted to Captain Holm for review.
After reviewing the transcripts, Captain Holm determined that only one charge--insubordination--was substantiated. A written reprimand was offered to each of the officers, including Brittingham and Story. Although a written reprimand was below the matrix of permissible punishments for insubordination, Chief Topping testified that he and the Town Council offered a sanction below the penalty matrix in an effort to resolve the matter.
Rather than accept the written reprimand, Brittingham and Story elected to request a hearing as to the allegations made against them. Chief Topping contacted the Criminal Justice Council (" CJC" ) to form the panel. Prior to the hearing, Brittingham and Story filed a motion with the CJC to compel discovery of documents, evidence, and proof. The CJC denied the motion because it lacked authority to compel production and the officers failed to identify any exculpatory documents that had not been produced.
At a hearing before the CJC panel on September 9, 2010, Brittingham and Story acknowledged that they were aware of Chief Topping's order regarding contact with council members. After hearing the evidence presented by both sides, the CJC panel found substantial evidence to support the insubordination charge. The panel noted, " [t]he Board is cognizant that this case may raise First Amendment issues regarding the right of free speech and to petition the government for redress." However, the CJC panel did not address the constitutional question because its jurisdiction under 11 Del. C. § 9207 " is limited to making findings of fact."  The CJC quoted the United States Court of Appeals for the Ninth Circuit: " Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board."  The CJC panel was not asked to recommend a penalty.
In October 2010, Chief Topping imposed discipline against Brittingham and Story. Brittingham received a four-week suspension without pay and a fourteen-day reduction in rank to Patrolman First Class, and was placed on disciplinary probation for one year. Story received a two-week suspension without pay, a seven-day reduction in rank to Patrolman, and disciplinary probation for one year. The officers appealed to the Town's Disciplinary Action Appeals Board. At a hearing held on October 18, 2010, the Appeals Board upheld the findings of the CJC panel.
On September 24, 2010, Brittingham and Story filed a petition for a writ of mandamus in the Superior Court ( Brittingham I ). In filing their mandamus petition, Brittingham and Story sought an order for a new hearing, additional production of documents, restoration of their employment status quo ante, and to have all records associated with the insubordination charge removed from their employment files. In addition, on January 4, 2011, they filed a civil complaint against Georgetown, Chief Topping, and Captain Holm in the Superior Court ( Brittingham II ). The civil complaint alleged, among other claims, violation of their First Amendment rights.
As to the mandamus petition, on June 28, 2011, the Superior Court found that Appellants had not established that their rights had been violated under LEOBOR. Thus, the Court declined to exercise its mandamus jurisdiction and dismissed the petition on Appellees' motion. This appeal followed on August 26, 2011. After being advised that Brittingham II was pending before the Superior Court, on March 19, 2012, this Court stayed the Brittingham I appeal pending the Superior Court's final decision in Brittingham II.
On July 31, 2014, the Superior Court in Brittingham II granted Appellees' motion for summary judgment on all remaining counts because Brittingham and Story had failed to establish that their meeting with Barlow constituted protected speech under
the First Amendment. Accordingly, on August 1, 2014, this Court lifted the stay in Brittingham I. Appellants filed a notice of appeal in Brittingham II on August 29, 2014. In the interest of justice and judicial economy, we consolidated the two appeals for the purpose of oral argument, which was held on March 11, 2015. We have addressed Brittingham II in a separate Order affirming the judgment of the Superior Court. In this Opinion, we address Brittingham and Story's request for mandamus relief.
Mandamus is an exceptional remedy that is not available as a matter of right, but rather, is issued only according to the " sound judicial discretion" of the court in which mandamus is sought. This Court reviews the Superior Court's denial of a petition for a writ of mandamus for an abuse of discretion.
A writ of mandamus may be issued by the Superior Court to command a lower court, agency, or public official to perform a duty " to which the petitioner has established a clear legal right."  " A writ of mandamus will not issue, however, unless the petitioner can establish that there is no other adequate remedy available."  For the performance of a duty to be clearly owed to a petitioner, it must be nondiscretionary or ministerial, meaning that it is " prescribed with such precision and certainty that nothing is left to discretion or judgment." 
The Superior Court has broad discretion to deny a petition where the legal duty is unclear or the petitioner has another remedy available. The Court may also dismiss a petition for mandamus where issuing the writ would be inequitable or where events after the petition's
filing moot the necessity of the writ. Relatedly, a court will not issue a writ of mandamus where doing so would be useless: " It is elementary that the writ of mandamus will not be granted to compel the performance of a futile act." 
The Law Enforcement Officers' Bill of Rights (" LEOBOR" )
The legal duties relevant to this case are set forth in LEOBOR. LEOBOR was passed in 1985 to provide uniform procedural rights to officers under investigation by their own departments. The Delaware General Assembly was concerned about " inconsistencies between departmental procedures within the State."  LEOBOR applies to " all law-enforcement disciplinary proceedings throughout the State, conducted by the law-enforcement agencies specified in § 9200(b) of this title." 
Most relevant here is Section 9200(c), which sets forth the rights of officers under investigation for disciplinary purposes. The version of the statute in effect at the time of the events at issue provided that a complaint cannot be filed against an officer to initiate disciplinary action " unless the complaint is supported by substantial evidence derived from an investigation by an authorized member of the department."  Notably, this aspect of the statute was amended on July 21, 2014, to allow the appointment of an investigating officer from outside the department. However, the prior version of the statute was in effect during the relevant times here, and thus, it is the version that we apply.
At the conclusion of an investigation, the officer must be informed in writing of the investigating officer's findings and recommendations. A copy of the record of the investigation must be provided to the officer or the officer's counsel at the officer's expense upon request. Once an officer is charged with a violation and discipline is sought, the officer is entitled access to all evidence that is " exculpatory, intended to support any disciplinary action[,] or [is] to be introduced in the departmental hearing on the charges involved."  Brittingham and Story, as officers protected by LEOBOR, had a clear legal right to the process provided therein.
The Alleged LEOBOR Violations
In the proceedings below, Brittingham and Story alleged a number of violations of LEOBOR. The alleged violations included the following assertions:
o Appellees did not enforce the requirement in the GPD Code of Conduct that all members of the force obey all orders;
o Appellees failed to protect their constitutional right to free speech by prohibiting them from contacting Council members;
o Appellees did not conduct an investigation by an authorized member of the department;
o Appellees failed to produce the Departmental Internal Investigations Contact Log;
o Appellees failed to " delineate the proper insubordination charges; "
o Appellees failed to support the initial complaint by substantial evidence;
o Appellees failed to disclose exculpatory evidence; and
o Sergeant Richardson failed to inform them in writing of his findings and recommendations.
Based upon these alleged violations of LEOBOR, the Appellants petitioned the Superior Court to:
o Remand the matter for a new hearing with a different CJC panel;
o Require Appellees to provide copies of transcripts and records to be used in the case;
o Immediately restore Appellants' employment, benefits, and prior ranks; and
o Remove all relevant documents from personnel files and records.
As a result of our review of the record, we conclude that all but one of the alleged violations are meritless for the reasons stated in the Superior Court's decision. Accordingly, we affirm the decision below as to these challenges and address the remaining issues below.
The First Amendment Claim
Brittingham and Story claimed a violation of their First Amendment right to free speech because they were prohibited from contacting Council members. First, they note that the CJC panel was unable to resolve the question of whether Appellants' First Amendment rights were violated. The Superior Court dispensed with the First Amendment claim, noting
that Appellants did not raise the issue with the CJC and that the CJC did not have the statutory authority to address legal questions. We agree with the Superior Court that under Section 9207, the CJC is a fact-finding body that has no jurisdiction to decide questions of law. Appellants do not point to any other source of law establishing that police officers have a clear right to have constitutional claims decided by the CJC.
Brittingham and Story also do not demonstrate why their First Amendment claims could not be heard elsewhere, such as in the civil proceeding they later filed in the Superior Court. Mandamus is inappropriate where petitioners have the ability to seek recourse elsewhere. Here, Brittingham and Story's separate civil action argues against their having no other remedy. Far from being quickly dispensed with, their civil claims were litigated for several years, with both parties engaging in extensive discovery. Accordingly, the Superior Court properly held that mandamus was not appropriate as to Appellants' First Amendment claim, and in any event, the claim is moot in its mandamus guise because it has been decided on its merits in the civil action.
The Only Possibly Meritorious LEOBOR Claim is Moot
Appellants' claim that the investigation was performed in violation of Section 9200(c)(3) of LEOBOR is technically correct. The investigating officer, who worked for the Dover Police Department, was not an " authorized member of the department" as required by the version of the statute in effect at that time. Yet, the Superior Court found that the decision to look outside the GPD for investigative support was not a violation of Brittingham and Story's rights, but rather provided them with additional protection. We agree that, given the small size of the GPD and the number of officers being investigated, it is difficult to see how Appellants were prejudiced by having an independent officer perform the investigation.
Appellants' own actions indicate a lack of prejudice arising from this technical violation. For example, in their petition for mandamus, Appellants did not ask for an investigation conducted by an authorized member of the GPD in compliance with LEOBOR, but rather focused on simply obtaining a new hearing. The hearing requested by Brittingham and Story in lieu of accepting the written reprimand was composed of officers outside the GPD. Section 9205 of LEOBOR, which sets forth hearing procedures, states that hearings " shall be conducted within the department by an impartial board of officers. . . . In the event an impartial board cannot be convened, then a board of 3 officers or more shall be convened under the auspices of the Delaware Criminal Justice Council." 
The Superior Court found that Brittingham and Story requested a hearing panel from outside the GPD. Further, at oral argument before this Court, counsel for Appellants acknowledged that the hearing could not have been conducted by officers within the GPD because Chief Topping and Captain Holm were essentially the complaining parties. They also acknowledged that there likely was no unconflicted officer within the department who could have performed the initial investigation. Brittingham's and Story's request to have a hearing panel composed of officers outside the GPD undercuts their claim that they were prejudiced by having the investigation conducted by an officer outside the GPD.
Although Delaware courts have held that in some circumstances, mandamus relief may be an appropriate remedy for LEOBOR violations, this Court has also affirmed the trial court's denial of mandamus relief when any violations were technical in nature and there was no prejudice to the officers involved, as in this case. But we do not need to consider the contours of mandamus review and its application to the Appellants' LEOBOR claims because the record reveals that the Appellants' claims are now moot.
Any relief this Court could order pursuant to a writ of mandamus would be useless to Appellants and, in fact, is no longer being sought. At oral argument, Brittingham and Story advised the Court that they have both left the GPD and that Chief Topping is retiring. Based on this change in circumstances, they conceded that ordering a new investigation or restoration of rank would be inappropriate: " Given that neither of the officers remain in the Town of Georgetown's employ, it would be difficult to send this down for yet another hearing, so what we're simply asking to do is to vacate that which was found in Brittingham I."
We agree that reinstating their positions with the GPD or an attempt to repeat the investigation into the charges against them using an authorized officer would be pointless. Neither Brittingham nor Story remain employed by the GPD or Georgetown, and therefore, they cannot benefit from any mandamus relief this Court could provide. Accordingly, we find their request for mandamus relief to be moot.
Recognizing that their change in employment compromised their argument for mandamus, the Appellants requested other relief at argument in lieu of a new investigation, namely, vacating the disciplinary sanctions. Thus, we confront the question of whether these other remedies--vacating the findings of the CJC and removing any associated disciplinary records--are within the scope of mandamus. Because we have not previously addressed this question, we turn to other jurisdictions for guidance.
The majority of states have held that " mandamus is not the proper remedy to compel the undoing of acts already done or the correction of errors or wrongs already perpetrated . . . ."  Mandamus is also not appropriate to compel disclosure of law enforcement records, and--particularly relevant here--generally will not be used to compel correction of law enforcement records. Even in the context of criminal records, an Ohio court has held that a writ of mandamus will not issue to compel removal of an individual who was allegedly incorrectly included in a police department's list of known sex offenders. The Court reasoned that " it is not clear that [the petitioner] has a clear, legal right enforceable in mandamus to have the records corrected or that [the department] has a clear, legal duty enforceable in mandamus to correct its records."  On appeal, the Supreme Court of Ohio held that the petitioner had failed to establish that police department records identified him as a sex offender prior to his conviction of sexual offenses. The Court affirmed the dismissal of the mandamus petition, noting that only a violation of the petitioner's procedural due process rights could require modification of the police department's files.
In Henderson v. Mayor of Medford  --a case that the Superior Court in Smith
relied upon--the Massachusetts Supreme Court addressed an officer's petition for a writ of mandamus based on his department's failure to provide him with a timely hearing on the disciplinary charges against him. The officer did not dispute the grounds for the charges, but sought mandamus relief purely on the alleged technical violation of the statute. The Court found the matter moot because the officer was not terminated but rather suspended, and the term of his suspension had lapsed. He was not entitled to mandamus relief reinstating his position because he " was entitled to return to work."  The Court assumed that the officer had chosen not to return, but noted that if he had attempted to do so and was " wrongfully prevented from returning[,] he has a new cause of action for that wrong wholly distinct from the cause of action upon which the present petition was brought."  As to the officer's request to remove the record of the discipline from his employment file, the Court noted that " [a] petition for a writ of mandamus does not lead to the quashing of any record."  After finding the officer's petition moot, the Court affirmed a modified order below dismissing the petition. We find Henderson persuasive and conclude that the removal of discipline from Appellants' employment records is outside the scope of the relief available to these Appellants under mandamus.
In the case of Brittingham and Story, there is nothing in LEOBOR that sets forth a clear legal duty on the part of any of the defendants to remove disciplinary records from an officer's employment files--and Appellants have not pointed us to any. In addition, the technical and nonprejudicial nature of the LEOBOR violation at issue here did not rise to the level of a Due Process violation. Accordingly, the relief Appellants request is not within the scope of mandamus.
Because Brittingham and Story did not suffer any denial of their rights under LEOBOR as to claims other than the Section 9200(c)(3) issue concerning the appointment of an investigating officer outside the GPD, we affirm the Superior Court's order granting summary judgment.
As to the alleged violation of the statute regarding the appointment of an outside officer to conduct the investigation, we find the matter moot.
Based upon the foregoing, the judgment of the Superior Court is hereby AFFIRMED.