State v. Barnes

IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, §
§ No. 52, 2014
Plaintiff-Below, §
Appellee/Cross-Appellant, § Court Below: Superior Court
§ of the State of Delaware in
v. § and for Sussex County
§
JEFFREY W. BARNES, § C.A. No. S14M-01-002 THG
§
Defendant-Below, §
Appellant/Cross-Appellee. §

Submitted: May 20, 2015
Decided: June 2, 2015

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en banc.
Upon appeal from the Superior Court. AFFIRMED.

Elizabeth R. McFarlan, Esquire, Sean P. Lugg, Esquire (argued), Karen V. Sullivan,
Esquire, Kathryn J. Garrison, Esquire, State of Delaware Department of Justice,
Wilmington, Delaware, for the State of Delaware.

Robert H. Robinson, Jr., Esquire, Bernard J. O‟Donnell, Esquire (argued), Office of
Public Defender, Wilmington, Delaware, for Jeffrey W. Barnes.

STRINE, Chief Justice:
 I. INTRODUCTION

This appeal involves a single question: whether the provisions of the Truth In

Sentencing Act of 1989 (the “TIS Act”) that indisputably abolished parole as to Title 11

and Title 16 of the Delaware Code also apply to felony DUI offenses imposed under

§ 4177 of Title 21. If the answer to that question is yes, as the State now argues, felony

DUI offenders are ineligible for parole. But for nearly a generation, the judicial and

administrative answer to the question has consistently been no. That is, the Superior

Court and the Board of Parole have operated with the understanding that the provisions of

the TIS Act that eliminated parole do not apply to felony DUI offenses. In addition, the

Delaware Sentencing Accountability Commission (“SENTAC”), which is statutorily

charged with providing guidelines to courts and attorneys about sentencing practices in

criminal cases, adhered to this position in its 2014 Benchbook. Because the Code can

reasonably be interpreted to continue parole eligibility for DUI offenses, that long-

standing judicial and administrative interpretation must be given great weight.1 We thus

adhere to principles of stare decisis and judicial restraint, and give the Code the reading

most consistent with the settled expectations of the public.2

1
See, e.g., Council 81, American Fed’n of State, County and Municipal Employees v. Delaware,
293 A.2d 567, 571 (Del. 1972) (“In seeking legislative intent, we give due weight to the practices
and policies existing at the time [the statute] was enacted . . . . A long-standing, practical, and
plausible administrative interpretation of a statute of doubtful meaning will be accepted by this
Court as indicative of legislative intent.”); Delaware v. Mayor of Wilmington, 163 A.2d 258, 264
(Del. 1960) (“[W]here a statute is doubtful or ambiguous in its terms, a practical administrative
interpretation over a period of time, if founded upon plausibility, will be accepted by the courts
as indicative of the legislative intent.”).
2
See Payne v. Tennessee, 501 U.S. 808, 827 (1991) (stare decisis is “the preferred course
because it promotes the evenhanded, predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the
1
 II. THE TRUTH IN SENTENCING ACT

The General Assembly passed the Truth In Sentencing Act on July 17, 1989, to

provide more certainty about the length of sentences to be served by criminal

defendants.3 The TIS Act expressly amended statutes contained in Titles 11 and 16 only,

although many of the amended provisions, including those governing the accumulation of

good time credits, had previously been applied to offenses contained in other titles by the

interaction of the Code‟s provisions.4 Most relevant to this appeal, the TIS Act amended

11 Del. C. § 4205 to state, “[n]o sentence to Level V incarceration imposed pursuant to

this Section is subject to parole.”5 Section 4205 is a backbone provision of Title 11 that

sets forth certain minimum and maximum sentences for levels of felonies contained in

judicial process”); Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 WASH. & LEE L.
REV. 281, 289-90 (1990) (“[I]nevitability of change touches law as it does every aspect of life.
But stability and moderation are uniquely important to the law. . . . [R]estraint in
decisionmaking and respect for decisions once made are the keys to preservation of an
independent judiciary and public respect for the judiciary‟s role as a guardian of rights.”).
3
See 67 Del. Laws, ch. 130 [hereinafter “TIS Act”] § 1 (“The purposes of this Act are: To
achieve truth in sentencing by assuring that the public, the State and the Court will know that the
sentence imposed by the Court will be served by the defendant; and that, the defendant will
know what the actual effect of the sentence will be. . . .”).
4
See, e.g., State v. Clyne, 2002 WL 1652149, *2 (Del. Super. July 22, 2002) (in calculating the
amount of good time credit earned by the defendant, who was imprisoned for a felony DUI
offense under Title 21, the Superior Court reasoned that because the TIS Act did not apply to
DUI offenses, it was required to apply “old law,” i.e., the good time credit provisions contained
in Title 11 before it was amended by the TIS Act. This suggests that these good time credit
provisions had previously applied to crimes in Title 21.); cf. State v. Williams, 1975 WL 167882,
*1 (Del. Super. Aug. 7, 1975) (noting that 11 Del. C. § 4201, which at the time stated that, “[a]ny
offense defined outside this Criminal Code which is declared to be a felony without specification
of the classification thereof shall be deemed a class E felony,” accordingly set the punishment for
felonies defined without a classification in Title 21).
5
TIS Act § 6 (amending 11 Del. C. § 4205(j)). The TIS Act also added a new Section 4354 to
Title 11, which states, “[n]o sentence imposed pursuant to the provisions of the Truth in
Sentencing Act of 1989 shall be subject to parole under the provisions of this subchapter.” TIS
Act § 7 (adding 11 Del. C. § 4354).
2
the Code.6 The TIS Act also stated that it took effect with respect to “all crimes”

committed after June 30, 1989.7

When the TIS Act was enacted, DUIs were unclassified misdemeanor offenses

contained in § 4177 of Title 21.8 In 1995, the General Assembly amended § 4177 to

create felony DUI offenses. The maximum penalties for felony offenses were increased

in 2009, and the minimum penalties for felony DUI offenses were increased in 2012. 9

Accordingly, persons imprisoned for DUI offenses today are serving longer sentences

than those who were incarcerated when the TIS Act was enacted.

III. PROCEDURAL BACKGROUND10

The procedural background of this case is complicated. On May 24, 2013, Jeffrey

Barnes pled guilty to his fifth DUI offense. The Superior Court sentenced Barnes under

6
See 11 Del. C. § 4205(b) (“The term of incarceration which the court may impose for a felony
is fixed as follows: (1) For a class A felony not less than 15 years up to life imprisonment to be
served at Level V except for conviction of first-degree murder in which event § 4209 of this title
shall apply. (2) For a class B felony not less than 2 years up to 25 years to be served at Level V.
(3) For a class C felony up to 15 years to be served at Level V. (4) For a class D felony up to 8
years to be served at Level V. (5) For a class E felony up to 5 years to be served at Level V. (6)
For a class F felony up to 3 years to be served at Level V. (7) For a class G felony up to 2 years
to be served at Level V.”).
7
TIS Act § 4 (“The provisions of Title 11 and Title 16, which are repealed by this Act shall
remain in force and effect for the purpose of trial and sentencing for all crimes which occur prior
to 12:01 a.m., June 30, 1990.”) (emphasis added).
8
See 21 Del. C. § 4177 (1988) (providing penalties for DUI offenses); 21 Del. C. §4102 (1963-
2009) (providing that all offenses in the Title 21 are misdemeanors unless otherwise designated);
11 Del. C. § 4202 (1988) (providing that misdemeanors outside of the Criminal Code without
specification were unclassified misdemeanors).
9
77 Del. Laws, ch. 162 (amending 21 Del. C. § 4177); 77 Del. Laws, ch. 167 (same).
10
The undisputed facts are drawn from the Superior Court‟s order and the record presented by
the parties on appeal.
3
21 Del. C. § 4177(d) to five years at Level V incarceration for his class E felony. 11 In

accordance with what seems to have been standard practice in the Superior Court for DUI

offenses, the sentence order designated the offense as “non-TIS.”12

In August 2013, Barnes filed an application to the Board of Parole for early

release. The Board granted Barnes‟ application over the State‟s opposition and Barnes

was released after serving only six months of his sentence. The State then filed an

emergency motion to correct an illegal sentence in the Superior Court, arguing for the

first time that Barnes‟ sentence was erroneously labeled as “non-TIS” because the TIS

Act applied to felony DUI convictions, and thus Barnes was ineligible for parole. After

the Superior Court refused to rule on the State‟s motion, 13 the State filed two petitions for

a writ of mandamus directing the Board of Parole to rescind its decision releasing

Barnes.14

11
State v. Del. Bd. Of Parole, 2014 WL 595870, *1 (Del. Super. Jan. 24, 2014) [hereinafter
“Order”].
12
See id.; see also Owens v. State, 2010 WL 8250841 (Del. Super. Dec. 6, 2010); State v. Clyne,
2002 WL 1652149 (Del. Super. July 22, 2002). We note that the record indicates that the
automated sentencing software that has been used for the Superior Court for many years reflects
this long-standing understanding and automatically generates the notation “NON-TIS” for DUI
offenses. See, e.g., App. to Op. Br. at 10.
13
The Superior Court stated in an office conference with the State and Barnes‟ counsel that it did
not think the sentence was illegal because “[the court‟s] reading of . . . the case law and [its]
personal experience on SENTAC . . . [is that] felony DUIs have not been considered TIS
sentences. . . . The felony DUIs came into existence six years after the TIS came into effect.”
App. to Op. Br. at 82.
14
The first petition was captioned as a criminal case and was directed at Barnes. The second,
filed several weeks later, was captioned as a civil action and directed at the Board of Parole.
The Board of Parole submitted a letter in response to the first writ filed by the State,
stating that it did not oppose the State‟s position: “[T]he Board has reviewed the motion filed by
the [State] in this case. Following review and consultation with counsel, the Board has decided
that it does not oppose this motion.” Supp. App. to Op. Br. at 8. In this appeal, however, the
Board of Parole submitted a letter stating that it “has always maintained that [the TIS Act]
4
 On January 24, 2014, the Superior Court issued an order addressing both of the

State‟s petitions.15 In determining that Barnes was eligible for parole, the Superior Court

relied on a previous decision of that court finding that DUI sentences are non-TIS

offenses,16 but nonetheless concluded that Barnes should not have been released because

he had not completed the portion of his sentence that was mandatory under 21 Del. C.

§ 4177.

Barnes then appealed and the State filed a cross-appeal of right under 10 Del. C.

§ 9902(e). Shortly thereafter, Barnes filed a notice of voluntary dismissal of his appeal

because his term of incarceration would have ended by the time his appeal was decided,

and thus, the issue of his incarceration had become moot. The State, however, wished to

maintain its cross-appeal, and both parties filed briefs. After hearing oral argument, this

Court decided to resolve the central question—whether a felony DUI is covered by the

TIS Act—en banc, after briefing and oral argument, as a matter of public importance.17

amended Title 11 and Title 16 offenses only . . . . [and] that it does maintain authority over
any/all Title 21 cases.” App. to Cross-Appelle‟s Ans. Br. at 1.
15
See Order. The Superior Court also formally denied the State‟s motion to correct an illegal
sentence as meritless. See Order at *2 (“The State . . . filed an emergency motion to correct an
illegal sentence, which is an inappropriate motion because the sentence was not illegal. That
motion is denied as meritless.”).
16
Order at *2 (citing State v. Clyne, 2002 WL 1652149, *4 n.6 (Del. Super. July 22, 2002)).
17
See State v. Barnes, No. 52, 2014 (Order) (Del. Nov. 13, 2014) (“[W]e believe that the State is
entitled to maintain its cross-appeal under 10 Del. C. § 9902(e)1 because its cross-appeal asserts
that the Superior Court erred in denying its motion to correct an illegal sentence and that motion
in essence challenged the underlying judgment of conviction. Although defendant Barnes‟s
appeal is ambiguous as to which order it challenges, it involves the same issue, and in
challenging the grant of mandamus, it also contested the legality of the original judgment of
conviction. And because the substantive issue the State raises—whether a felony DUI offense is
covered by the Truth In Sentencing Act—is very important, this is a fitting matter for review
under 10 Del. C. § 9903. Indeed, the substantive issue is important enough that it should be
addressed en banc after full briefing on the merits.”); see also 10 Del. C. § 9902(e) (“The State
5
Accordingly, the Court appointed the Public Defender, who represented Barnes, to

support the position that felony DUIs are not covered by the TIS Act. Although Barnes

did not wish to pursue his appeal given his release, for the sake of clarity, we refer to him

as the proponent of the position that the TIS Act does not apply to felony DUI offenses.

Barnes took that position in his briefing and in oral argument in front of this Court,

before the Public Defender was appointed to submit additional briefing.18

IV. ANALYSIS

The parties dispute whether the TIS Act eliminated parole for all crimes contained

in the Delaware Code, including felony DUI offenses contained in Title 21, or only

crimes contained in Titles 11 and 16. The State argues that because the TIS Act states

that it applies to “all crimes,” persons serving prison sentences for felony DUIs, which

are crimes under the definition in Title 11,19 are ineligible for parole. By contrast, Barnes

contends that the TIS Act provisions that eliminated parole only apply to crimes

contained in Titles 11 and 16, because the TIS Act only amended and referred to statutes

shall have an absolute right to appeal to an appellate court any ruling of a lower court on a
question of law or procedure adverse to the State in any case in which the accused was convicted
and appeals from the judgment, except that the decision or result of the State‟s appeal shall not
affect the rights of the accused unless the accused, on his or her appeal, is awarded a new trial or
a new sentencing hearing. Once the State perfects its cross-appeal, the appellate court shall
review and rule upon the questions presented therein regardless of the disposition of the
defendant‟s appeal.”); 10 Del. C. § 9903 (“The State may apply to the appellate court to permit
an appeal to determine a substantial question of law or procedure, and the appellate court may
permit the appeal in its absolute discretion. . . . [and] the court may require the Public Defender
of this State to defend the appeal and to argue the cause.”).
18
See Cross-Appellee‟s Ans. Br. at 13-16.
19
See 11 Del. C. § 233 defines a “crime or offense” as “an act or omission forbidden by a statute
of this State and punishable upon conviction by: (1) Imprisonment; or (2) Fine . . . .” Because
felony DUI offenses are punishable by both imprisonment and fines, they are crimes under the
Title 11. See 21 Del. C. § 4177.
6
contained in those titles.20 Barnes also points out that for nearly a generation, the Board

of Parole and the Superior Court have operated under the understanding that felony DUI

offenses are eligible for parole, and SENTAC adhered to that position in its 2014

Benchbook.

In addressing this matter, we hew to a narrow version of the dispute before us,

which is whether defendants convicted of felony DUI offenses under 21 Del. C. § 4177

are eligible for parole. Because the debate about this specific question arises twenty

years after the adoption of felony DUIs, it would be hazardous to make any broader

pronouncement about the complicated interaction of the various Code titles than is

necessary to resolve this appeal.

We review issues of statutory construction de novo.21 The starting point for the

interpretation of a statute begins with the statute‟s language.22 When a statute is

susceptible to two different interpretations, as it is here,23 the court is required to interpret

the statute based on “available, relevant information and evidence.”24

We acknowledge that the State‟s argument is a strong one as an initial matter. If

one were interpreting the Code in 1995, shortly after the adoption of felony DUIs, this

20
As Barnes points out, the TIS Act itself is titled “An Act to Amend Title 11 and Title 16 to
Provide for Truth in Sentencing.”
21
See Snyder v. Andrews, 708 A.2d 237, 241 (Del. 1998).
22
See Freeman v. X-Ray Assocs., P.A., 2010 WL 2685732, at *4 (Del. May 12, 2010)
(citing Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del.
1985)) (“We must give effect to the legislature‟s intent by ascertaining the plain meaning of the
language used.”).
23
See, e.g., Harvey v. City of Newark, 2010 WL 4240625, at *6 (“[I]t would seem rare indeed to
discover that a practical construction that had been relied upon for many years was based on an
entirely implausible reading of the text at issue.”).
24
2A Sutherland Statutory Construction § 45:2 (7th ed.).
7
Court might take the position that the better reading of the statute is the one that the State

now advances.25 But, the contrary interpretation advanced by Barnes is also a reasonable

one. The most direct provision of the Code upon which the State relies in this appeal is

11 Del. C. § 4205, which states, “[n]o sentence to Level V incarceration imposed

pursuant to this Section is subject to parole.”26 Admittedly, § 4177 makes a fifth DUI

offense a class E felony, and § 4205 specifies the backbone terms of incarceration for

each class of felonies. But the Code also states that Title 11 will not govern the

sentencing for crimes in other titles if the “context otherwise requires.”27 Section 4177 of

Title 21 is largely a self-contained statute, and includes detailed prescriptions for

sentencing a DUI offender, including the maximum and minimum term of

incarceration.28 As such, a court need not look to § 4205 when sentencing a felony DUI

offender, as the State conceded at oral argument. In fact, to do so would be hazardous,

because § 4205 only fixes the maximum term of incarceration for a class E felony at five

25
Because the TIS Act applies to “all crimes,” and felony DUI offenses are crimes under the
Code, the State‟s argument that the TIS Act eliminated parole for felony DUI offenses is
reasonable. See TIS Act § 4; 11 Del. C. § 233; 21 Del. C. § 4177. Such a reading would also be
consistent with the policy goal of the TIS Act, “[t]o achieve truth in sentencing by assuring that
the public, the State and the Court will know that the sentence imposed by the Court will be
served by the defendant; and that, the defendant will know what the actual effect of the sentence
will be,” and accord with the General Assembly‟s recent amendments to § 4177, which
demonstrate an intent to treat felony DUIs as serious crimes. See TIS Act § 1A; 77 Del. Laws,
ch. 162 (amending 21 Del. C. § 4177); 77 Del. Laws, ch. 167 (same).
26
11 Del. C. § 4205(j) (emphasis added).
27
See 11 Del. C. § 103 (stating that Title 11 sets the punishment for offenses contained within
Title 11 and also for “any offense defined in a statute other than this Criminal Code” “unless
otherwise expressly provided, or unless the context otherwise requires.”).
28
Section 4177 provides for a five-year maximum sentence for class E felony DUIs, and also
includes detailed provisions addressing the appropriate sentence for DUIs of all classes. See,
e.g., 21 Del. C. §4177(d)(5) (“For a fifth offense occurring any time after 4 prior offenses, be
guilty of a class E felony, be fined not more than $10,000 and imprisoned not less than 3 years
nor more than 5 years.”).
8
years. This would not give a judge enough information to sentence a class E felony DUI

offender, such as Barnes, because § 4177 has detailed provisions governing the sentence

range that must be followed in sentencing such an offender and the minimum amount of

time that he must serve.29

Reading the Code to continue parole eligibility for felony DUI offenders is not

only plausible, it the interpretation that has been held by the Superior Court and the

Board of Parole—both composed of sophisticated, repeat players in our criminal justice

system, who grapple with the Code on a daily basis—for the entire period since DUIs

were made felonies in 1995. The Superior Court has twice addressed the question raised

in this appeal and each time concluded that Title 21 offenses are not subject to the TIS

Act.30 The Attorney General was a party to both of those cases, but did not challenge the

Superior Court‟s finding in either, despite the reality that its acquiescence ensured that

the defendants would not be subject to provisions of the TIS Act that would have

otherwise limited the amount of good time credit available to each.31 In addition, the

29
See id.
30
See State v. Clyne, 2002 WL 1652149, *4 n.6 (Del. Super. July 22, 2002) (“Driving Under the
Influence of Alcohol is not encompassed by Delaware‟s Truth In Sentencing . . . Act.
Petitioner‟s sentence, therefore, is a non-TIS sentence.”); Owens v. State, 2010 WL 8250841, *2
(Del. Super. Dec. 6, 2010) (citing Clyne for the proposition that “driving under the influence . . .
is a non-TIS sentence”).
31
In Clyne, the Superior Court determined that because the TIS Act did not apply to Title 21
offenses, the amendments that reduced good time credit for offenders did not apply.
Accordingly, the Superior Court referred to “old law”—that is, the provisions of Title 11 that had
been in effect before the TIS Act was enacted—to compute the defendant‟s good time credits for
his felony DUI offense. 2002 WL 1652149, *4 n.6 (Del. Super. July 22, 2002). In 2010, the
General Assembly amended Title 11 to ensure that the TIS Act provisions for good time credits
would be consistently applied to all offenses, other than a life sentence, thus overruling Clyne.
See Order at *3-4. This amendment formed the basis for the Superior Court‟s decision to refer to
9
Board of Parole, which has authority to release on parole persons incarcerated for non-

TIS sentences,32 claims that it has continually exercised jurisdiction over Title 21

offenses since the passage of the Act in 1989, and has granted parole to persons

incarcerated for DUI offenses.33

Moreover, SENTAC stated that Title 21 offenses are not covered by the TIS Act

in its 2014 Benchbook, which is used by all judges and attorneys who handle criminal

cases.34 SENTAC is a committee composed of “four members of the judiciary . . .

appointed by the Chief Justice, the Attorney General, the Public Defender, the

Commissioner of Correction and four members at large.”35 It thus represents key

stakeholders in our criminal justice system. In addition, the General Assembly has given

SENTAC statutory authority to interpret the Code to establish “detailed, objective

criteria” for judges to use when assigning punishment for offenders.36

The consistent position taken by both the judicial and administrative branches

supports the plausibility of Barnes‟ interpretation for a compelling reason. It suggests

the TIS Act when allocating good time credit for Barnes‟ prison sentence for his fifth felony
DUI, even after it had determined that the offense was not subject to the TIS Act. Id.
32
11 Del. C. §§ 4346; 4354.
33
In this appeal, the Board of Parole submitted a letter stating that it “has always maintained that
[the TIS Act] amended Title 11 and Title 16 offenses only . . . . [and] that it does maintain
authority over any/all Title 21 cases.” App. to Cross-Appelle‟s Ans. Br. at 1. The State does not
contest the Board‟s rendition of history, other than pointing out that it cannot verify it because
the Board of Parole does not maintain records of the types of applications it grants.
34
See 2014 SENTAC Benchbook at 88 (“Title 21 and Title 23 Offenses. These offenses are not
covered by Truth in Sentencing but are provided as a reference for commonly prosecuted motor
vehicle offenses: . . . Driving a Vehicle While Under the Influence. . . .”), available at
http://courts.delaware.gov/superior/pdf/benchbook_2013.pdf.
35
The Delaware Sentencing Accountability Commission (SENTAC), State of Delaware,
available at http://cjc.delaware.gov/sentac/sentac.shtml.
36
11 Del. C. §§ 6580(b); 6581(c).
10
that, for a generation, none of the key governmental stakeholders most involved in

implementing the felony DUI provisions of the Code—the Department of Justice, the

Public Defender, the Department of Correction, the Board of Parole, SENTAC, and the

Superior Court—believed the enactment of the TIS Act to have deprived the Board of

Parole of authority to grant parole to offenders convicted under § 4177.37 Their

understanding is entitled to strong consideration when giving practical effect to what the

Code means, given the important role that the Superior Court, Board of Parole, and

SENTAC play in giving life to the Code in the most central way relevant to this appeal:

how the Code operates to impose punishment on offenders.

37
See, e.g., Council 81, American Fed’n of State, County and Municipal Employees v. Delaware,
293 A.2d 567, 571 (Del. 1972) (“In seeking legislative intent, we give due weight to the practices
and policies existing at the time [the statute] was enacted . . . . A long-standing, practical, and
plausible administrative interpretation of a statute of doubtful meaning will be accepted by this
Court as indicative of legislative intent.”); cf. Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) (“We have long recognized that considerable weight should
be accorded to an executive department‟s construction of a statutory scheme it is entrusted to
administer, and the principle of deference to administrative interpretations has been consistently
followed by this Court whenever decision as to the meaning or reach of a statute has involved
reconciling conflicting policies, and a full understanding of the force of the statutory policy in
the given situation has depended upon more than ordinary knowledge respecting the matters
subjected to agency regulations.”) (internal citations omitted); Vassallo v. Haber Electric Co.,
435 A.2d 1046 (Del. 1981) (“An administrative agency‟s construction of regulations enacted by
it and statutes it administers are given great weight by the courts, provided said construction is
not clearly erroneous.”); State Farm Mut. Auto Ins. Co. v. Mundorf, 794 A.2d 215 (Del. 1995)
(“Although the interpretation of a regulation is ultimately a question of law for a court to decide,
substantial weight and deference is accorded to the construction of a regulation enacted by an
agency which is also charged with its enforcement.”); Division of Social Services of Dept. of
Health and Social Services v. Burns, 438 A.2d 1227 (Del. 1981) (“This deference is reflected in
the standard of judicial review that an administrative agency‟s interpretation of its rules and
regulations will not be reversed unless clearly erroneous.”).
11
 When a statute has been applied by courts and state agencies in a consistent way

for a period of years, that is strong evidence in favor of that interpretation.38 Under the

doctrine of stare decisis, we must take seriously the longstanding interpretation of a

statute held by our Superior Court, especially when it has been relied upon by the key

actors in our criminal justice system.39 The doctrine of stare decisis exists to protect the

settled expectations of citizens because, “[e]lementary considerations of fairness dictate

that individuals should have an opportunity to know what the law is and to conform their

conduct accordingly.”40 The same principles also explain the weight given to long-

38
See, e.g., Vegso v. Bd. of Trustees of the Employees Ret. Sys. of New Castle County, 1986 WL
9019, at *4 (Del. Super. Aug. 20, 1986) (where legislation is “doubtful or ambiguous in its terms,
a practical administrative interpretation over a period of time, if founded upon plausibility, will
be accepted by the courts as indicative of the legislative intent”) (citing Delaware v. Mayor of
Wilmington, 163 A.2d 258, 264 (Del. 1960)); J.N.K., LLC v. Kent County Levy Court, 974 A.2d
197, 209 (Del. Ch. 2009) (citing Delaware v. Mayor of Wilmington and holding that deferring to
a county‟s interpretation of its own code is proper when the interpretation is “long-standing”);
Green v. Sussex County, 668 A.2d 770, 775 (Del. Super. 1995) (citing Delaware v. Mayor of
Wilmington for the same proposition); McCusker v. Ret. Comm. of the City of Dover, 1986 WL
13993, at *3 (Del. Super. Nov. 21, 1986) (same); 2A Sutherland Statutory Construction § 45:2
(7th ed. 2010) (same).
39
See Seinfeld v. Verizon Commc’ns, Inc., 909 A.2d 117, 124 (Del. 2006) (“Under the doctrine
of stare decisis, settled law is overruled only for urgent reasons and upon clear manifestation of
error.”) (internal quotations omitted); Oscar George, Inc. v. Potts, 115 A.2d 479, 481 (Del. 1955)
(“stare decisis means that when a point has been once settled by decision it forms a precedent
which is not afterwards to be departed from or lightly overruled or set aside . . . .”); Harvey v.
City of Newark, 2010 WL 4240625, *6 (Del. Ch. Oct. 20, 2010) (“When the interpretation of a
statute has been the subject of litigation and the court has read the statute in a certain way, that
interpretation should not be lightly set aside by future courts.”); cf. 3 Sutherland Statutory
Construction § 61:1 (7th ed.) (citing Shaw v. Merchants’ Nat. Bank, 101 U.S. 557(1879), for the
proposition that courts should interpret statutes to make “the least, rather than the most, change
in common law”); Johnson v. Mathews, 539 F.2d 1111 (8th Cir. 1976) (“Ambiguities must be
resolved in favor of that interpretation which affords a full opportunity for equity courts to
exercise their traditional practices.”).
40
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994); see also Oscar George, Inc., 115
A.2d at 481 (stare decisis‟s “support rests upon the vital necessity that there be stability in our
courts in adhering to decisions deliberately made after careful consideration”); Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992) (noting the importance, in
12
standing administrative interpretations that have been relied upon by the public.41

Predictability and certainty in the law is all the more important when the statute in

question involves criminal penalties, as it does here.42

Yet after years of acquiescence, the State now asks this Court to deem this settled

interpretation implausible under the plain language of the statute, even though it has been

held by sophisticated stakeholders in our criminal justice system for over a decade. And

it asks us to weigh in even though the General Assembly is aware of the long-standing,

contrary interpretation and has not acted to alter it. “[W]hen the prior judicial

reevaluating the rule set forth in Roe v. Wade, of “whether the rule‟s limitation on state power
could be removed without serious inequity to those who have relied upon it or significant
damage to the stability of the society governed by it”); Payne v. Tennessee, 501 U.S. 808, 827
(1991) (stare decisis is “the preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process”); United States v. Title
Ins. Co., 265 U.S. 472, 485 (1924) (noting the importance of citizens‟ ability to rely on settled
law, and the court‟s inclination to avoid causing “injurious results” to those who have relied on
that law in the event that the court alters it); see also John R. Sand & Gravel Co. v. United States,
552 U.S. 130, 139 (2008) (“[O]ur reexamination of well-settled precedent could nevertheless
prove harmful . . . . To overturn a decision settling one . . . matter simply because we might
believe that decision is no longer „right‟ would inevitably reflect a willingness to reconsider
others. And that willingness could itself threaten to substitute disruption, confusion, and
uncertainty for necessary legal stability.”); Lewis F. Powell, Jr., Stare Decisis and Judicial
Restraint, 47 WASH. & LEE L. REV. 281, 289-90 (1990).
41
See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 137-40 (1944) (holding that agency
interpretations of ambiguous statutes are entitled to respect by courts to the extent that they have
persuasive power based on consistency, factual basis, and expertise); Helvering v. Griffiths, 318
U.S. 371, 403 (1943) (deferring to an administrative interpretation of the Internal Revenue Code
that had been held and enforced by the relevant government agencies for seven years because a
contrary result would create hardship for taxpayers, unsettle tax administration, and subject the
government agencies to many demands that the Court could not “anticipate and provide for”).
42
Cf. Busic v. U.S., 446 U.S. 398 (1980) (noting that the Court‟s holding is consistent with “the
canons of statutory construction that ambiguity concerning the ambit of criminal statutes should
be resolved in favor of lenity”); State v. Haskins, 525 A.2d 573, 576 n.3 (Del. Super. 1987)
(“[W]hen a criminal statute is ambiguous, it should be construed against the State and read in
favor of the defendant.”), rev’d on other grounds, 540 A.2d 1088 (Del. 1988); 3 Sutherland
Statutory Construction § 59.03 (stating the general principle that ambiguous penal statutes are
strictly construed against the government).
13
interpretation was subject to being overturned by the operation of the legislative process

and was not overturned, the justification for departing from stare decisis is even more

tenuous.”43 A fundamental canon of statutory construction states that “[t]he long time

failure of [the legislature] to alter [a statute] after it had been judicially construed . . . is

persuasive of legislative recognition that the judicial construction is the correct one.”44

We know the General Assembly is aware that the Board of Parole continues to

exercise jurisdiction over persons imprisoned for crimes contained in Title 21 because it

considered legislation that would have clarified the application of the TIS Act last

session.45 The fact that the Board of Parole‟s exercise of jurisdiction over Title 21

offenses has been brought to the attention of General Assembly, who has not altered it,

43
Harvey v. City of Newark, 2010 WL 4240625, at *7.
44
Apex Hosiery Co. v. Leader, 310 U.S. 469, 488 (1940); see also IBP, Inc. v. Alverez, 546 U.S.
21, 32 (2005) (“Considerations of stare decisis are particularly forceful in the area of statutory
construction, especially when a unanimous interpretation of a statute has been accepted as settled
law for several decades.”); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) (“[W]e must
bear in mind that considerations of stare decisis weigh heavily in the area of statutory
construction, where Congress is free to change this Court‟s interpretation of its legislation.”);
LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 260 (2008) (Roberts, C.J., concurring)
(“In matters of statutory interpretation, where principles of stare decisis have their greatest
effect, it is important that we not seem to decide more than we do.”); Hilton, 502 U.S. at 202
(1991) (“Congress has had almost 30 years in which it could have corrected our decision in
Parden if it disagreed with it, and has not chosen to do so. We should accord weight to this
continued acceptance of our earlier holding. Stare decisis has added force when the legislature,
in the public sphere, and citizens, in the private realm, have acted in reliance on a previous
decision . . . .”); cf. Bob Jones University v. United States, 461 U.S. 574 (1983); Grove City
College v. Bell, 465 U.S. 555, 568 (1984); 82 C.J.S. Statutes § 466 (“A long-standing
administrative construction of a statute is accorded great weight in the determination of
legislative intent because the legislature is presumed to have acquiesced in that construction if it
has not amended the statute.”).
45
The General Assembly ultimately tabled H.B. 415, which would have amended the TIS Act to
state: “All Title 21 felony offenses shall be covered by this Act and any amendments thereto.”
App. to Answering Br. at 135. The record does not indicate why the Bill was tabled.
14
further cautions against our taking action to disrupt the settled sentencing practices

employed by courts, the Department of Correction, and the Board of Parole.46

For the foregoing reasons, we adhere to stare decisis, the principles of consistency

and predictability we have articulated, and therefore hold that the TIS Act does not apply

to felony DUI offenses under 21 Del. C. § 4177. If the General Assembly wishes to

amend the Code to alter this long-standing interpretation, it is free to do so.

46
See United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979) (“[O]nce an agency‟s statutory
construction has been „fully brought to the attention of the public and the Congress,‟ and the
latter has not sought to alter that interpretation although it has amended the statute in other
respects, then presumably the legislative intent has been correctly discerned.”) (quoting Apex
Hosiery, 310 U.S. at 489).
15