RICHARD L. ABBOTT Plaintiff,
v.
DELAWARE STATE PUBLIC INTEGRITY COMMISSION, Defendant.
Submitted: November 6, 2017
Upon
Petitioner's Writ of Certiorari Regarding the Decision of
the Delaware State Public Integrity Commission:
Richard L. Abbott, Esquire, Abbott Law Firm, Pro Se
Plaintiff.
Deborah J. Moreau, Esquire, Delaware State Public Integrity
Commission, Attorney for Defendant.
OPINION AND ORDER
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 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] It 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 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
government."[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 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 determination.[20] 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
Complaint.[23] The PIC was served on November
14th.[24] On November 22nd, Abbott
filed an Amended Complaint, addressing the PIC's October
27th Amended Decision.[25] The PIC submitted the
Record on November 23rd 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.[30] Abbott then
argues that Aaronson is a State 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
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 "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] 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."[51] 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 THE 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."[53] However,
certiorari is in the nature of the appellate
process.[54] 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
remand.[55] 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] It 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 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.[59] 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 investigate alleged violations and § 5810A
allows for appellate review of PIC decisions finding any
person in violation of Chapter 58.[61] 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 Not 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.[62] It is the PIC's duty to refer and
investigate any State Employee, Officer, or Official who is
alleged to have violated the State Ethics Code.[63] There is no
doubt that Aaronson is a State employee. However, Aaronson is
also acting as Disciplinary Counsel. In 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. Attorney discipline is not addressed in
the statute and neither are any other attorney related
subjects. 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 profession.[64] 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.[65]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.[66] In 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.
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."[67] If 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
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