Capriglione v. State of Delaware

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL CAPRIGLIONE, §
§
Respondent Below, §
Appellant, § No. 138, 2021
§
v. § Court Below: Superior Court
§ of the State of Delaware
STATE OF DELAWARE, ex rel. §
KATHLEEN JENNINGS, § C.A. No. N21C-04-091
ATTORNEY GENERAL, §
§
Petitioner Below, §
Appellee. §

Submitted: July 14, 2021
Decided: October 1, 2021

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting the Court en banc.

Upon appeal from the Superior Court. REVERSED.

Stephani J. Ballard, Esquire, LAW OFFICES OF STEPHANI J. BALLARD, LLC,
Wilmington, Delaware, for Appellant Michael Capriglione.

David C. Skoranski, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for Appellee State of Delaware.
TRAYNOR, Justice for the Majority:

On April 5, 2021, Michael Capriglione was elected to a two-year term as a

Commissioner of the Town of Newport. On the eve of his swearing-in ceremony,

the Attorney General, on behalf of the State of Delaware, petitioned for a writ of quo

warranto in the Superior Court. The State contended that Capriglione was

prohibited from serving as a Commissioner because he had been convicted of

misdemeanor official misconduct for actions he took as Newport’s police chief in

2018. That offense, the State argued, was a disqualifying “infamous crime” under

Art. II, § 21 (“Section 21”) of the Delaware Constitution. The Superior Court stayed

Capriglione’s swearing in to resolve this question and eventually held that he was

constitutionally barred from holding public office.

We considered Capriglione’s appeal on an expedited basis, hearing oral

argument on July 14, 2021. On July 16, we issued an order reversing the Superior

Court and allowing Capriglione to take the oath of office.1 In this opinion, we

explain our reasons for doing so. We hold that, under Section 21, only felonies can

be disqualifying “infamous” crimes.

1
Capriglione v. State, 256 A.3d 207, 2021 WL 3012671, at *1 (Del. July 16, 2021) (TABLE)
[hereinafter Capriglione (Order)].
2
 I

A

In May 2018, video surveillance captured Capriglione, Newport’s then-police

chief, backing his police vehicle into a pickup truck in the department’s parking lot.

Capriglione did not report the incident.2 A few days later, Capriglione ordered a

“reset” of the town’s video-surveillance system purportedly to address an ongoing

malfunction.3 The reset deleted the previous two weeks of surveillance, including

the footage of the parking-lot incident.4 In authorizing the reset, Capriglione rejected

a second remedial option that would have corrected the malfunction and preserved

all existing data.5

In June 2018, the State sought and obtained a grand jury indictment against

Capriglione for four offenses: (1) failure to provide information at the scene of a

collision, (2) careless driving, (3) tampering with physical evidence, a Class G

felony, and (4) official misconduct, a Class A misdemeanor.6 The first two counts

allege violations of the Delaware Motor Vehicle Code, while the latter two allege

violations of the Delaware Criminal Code.

2
App. to Opening Br. at A18.
3
Id.
4
Id. at A120.
5
Id.
6
Capriglione’s indictment for misdemeanor official misconduct was under 11 Del. C. § 1211. The
indictment, in pertinent part, read: “Michael Capriglione . . . while being a public servant, intending
to obtain a personal benefit, committed an act, constituting an unauthorized exercise of official
functions, knowing that the act is unauthorized.” App. to Opening Br. at A17.
3
 The parties reached an agreement under which Capriglione pleaded guilty to

careless driving and official misconduct and the State agreed to enter a nolle

prosequi on the remaining charges, including the felony tampering count.7

Capriglione also agreed to surrender his Council on Police Training certification and

refrain from seeking further certification.8 In the written plea agreement,

Capriglione acknowledged that he had “ordered the deletion of a surveillance video,

which depicted him striking another vehicle in the parking lot of [the] Newport

Police Department.”9 Capriglione was sentenced to one year of probation and

ordered to pay approximately $3,800 in restitution.10

Two years later, Capriglione decided to run for an open Commissioner

position in Newport. Newport’s Charter, consistently with 15 Del. C. § 7555(c)(1),

prohibits felons from serving as a Commissioner.11 But Capriglione’s official

misconduct conviction was a misdemeanor, and he was elected on April 5, 2021,

earning 32 votes, the most of the four Commissioners-elect.12

7
App. to Opening Br. at A18.
8
Id.
9
Id.
10
Id.
11
Charter of Newport, § 3-05. Ex. C. to Opening Br. at 5. Section 7555(c)(1) bars felons from
municipal public service unless a town’s charter says otherwise. 15 Del. C. § 7555(c)(1).
12
App. to Opening Br. at A82, 91.
4
 B

The Delaware Attorney General brought this action on behalf of the State on

April 14, 2021, seeking a stay of Capriglione’s swearing in—scheduled for the next

day—and a writ of quo warranto13 to nullify his election.14 The Superior Court

granted the stay and considered the parties’ filings as cross-motions for summary

judgment.15

On May 4, the Superior Court, recognizing that the question before it was both

difficult and consequential, held that Capriglione was constitutionally barred from

holding public office.16 It observed that this Court had never squarely addressed the

question of whether a misdemeanor can be an “infamous crime” under Section 21.17

13
The writ of quo warranto “is a remedy that is essentially adversarial in nature that seeks to
remove the challenged officer from a position. The writ or order is like a summons commanding
the respondent to show by what authority he or she claims to hold an office and is, in effect, an
order to show cause.” 65 Am. Jur. 2d Quo Warranto § 2 (Feb. 2021). As Justice Woolley explained
in 1911, a “writ of quo warranto was in the nature of a writ or right for the king against him who
claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his
claim, in order to determine the right. . . . By the fiction of feudal law the king was the fountain
whence all franchises were derived, the exercise of any of which without regal grant was
considered a usurpation of the king’s prerogative. Hence the writ of quo warranto became a
prerogative writ that issued of right, wherein the king, being the sole party in interest, instituted
the action in his own name, in his own right, by his Attorney General.” Brooks v. State, 26 Del. 1,
36, 40 (Del. 1911).
14
Pet. for Writ of Quo Warranto ¶ 2. App. to Opening Br. at A6–7.
15
State ex rel. Jennings v. Capriglione, 2021 WL 1784084, at *3 (Del. Super. Ct. May 4, 2021).
The Superior Court noted that quo warranto proceedings involve the issue of whether an official
who has been elected and already assumed public office has the right to remain in office.
Observing that this case involved the distinguishable question of whether Capriglione had the right
to assume the office he was elected to, the Superior Court treated the State’s petition as a motion
for declaratory judgment and decided the matter—without objection from the parties—“as though
the parties [had] filed cross-motions for summary judgment.” Id.
16
Id. at *1.
17
Id. at *4.
5
The court also distinguished as dicta other Superior Court cases that indicated that

only felonies can be disqualifying.18 It then conducted a totality-of-the-

circumstances analysis and held that Capriglione’s misdemeanor conviction was

“infamous” because it involved dishonesty and “amount[ed] to a breach of the public

trust” in light of Capriglione’s position as police chief.19

We heard Capriglione’s appeal on an expedited basis and reversed the

Superior Court, allowing him to be sworn in.20 After considering the historical

understanding of Section 21, the longstanding interpretation of the provision by this

Court and the Superior Court, and the General Assembly’s activity in this area, we

hold that only felonies can be disqualifying “infamous” crimes under the Delaware

Constitution.

II

This Court reviews the trial court’s ruling on a motion for summary judgment

de novo.21 We review questions of law and constitutional claims de novo.22

18
Id. at *4–6.
19
Id. at *8.
20
Capriglione (Order), 2021 WL 3012671, at *1.
21
Furman v. Del. Dep’t of Transp., 30 A.3d 771, 773 (Del. 2011) (quoting Ramirez v. Murdick,
948 A.2d 395, 399 (Del. 2008)).
22
Doe v. Wilmington Hous. Auth., 88 A.3d 654, 661 (Del. 2014) (citing Sheehan v. Oblates of St.
Francis de Sales, 15 A.3d 1247, 1258 (Del. 2011); Lambrecht v. O’Neal, 3 A.3d 277, 281 (Del.
2010)).
6
 III

“Any analysis of a Delaware Constitutional provision begins with that

provision’s language itself.”23 Our task is to ascertain both the intent of the delegates

to the Constitutional Convention of 1897 and the original public meaning of the

language at issue.24 When the historical understanding of the provision is not

dispositive, “we next turn to precedent[.]”25 In doing so, we consider the decisions

of this Court and any well-developed decisional law of our State’s lower courts.26

A

1
We begin, as the Superior Court did, with the text of Section 21. To the extent

that the meaning of the text is not self-evident, we turn to the records of the

Constitutional Convention of 1897 and other historical sources to determine how the

framers intended the provision to operate and how the people of Delaware would

23
In re Request of Governor for Advisory Opinion, 950 A.2d 651, 653 (Del. 2008) [hereinafter
Advisory Opinion (Pepukayi)].
24
Id.; In re Request of Governor for an Advisory Opinion (Del. Const. art. III, § 11), 905 A.2d
106, 108 (Del. 2006) (“The purpose of this brief reference to the Delaware Bill of Rights is to
illustrate the significance of knowing the original text, context, and evolution of any phrase that
appears in the present Delaware Constitution.”).
25
Advisory Opinion (Pepukayi), 950 A.2d at 653.
26
LG Electronics, Inc. v. InterDigital Comms., Inc., 114 A.3d 1246, 1249 (Del. 2015); see Blue
Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975) (explaining that the “longstanding
acceptance by the courts” of a single interpretation, and the legislature’s “failure to reject” it,
favored approval of the interpretation.); see also Blau v. Lehman, 368 U.S. 403, 414 (1962)
(holding that the legislature “is the proper agency to change an interpretation [] unbroken since its
passage.”).
7
have understood its language at the time of its adoption.27 This exercise leads us to

conclude that the framers understood Section 21 “infamous crimes” to include only

felonies and offenses punishable by multiple years in prison.

Section 21 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.

Two textual features of Section 21 are noteworthy.

First, although the delegates provided elsewhere in the Constitution that “any

high crime or misdemeanor” could support impeachment of a public official,28 the

text of Section 21 does not go so far.

Second, Section 21 enumerates three specific disqualifying offenses—

“embezzlement of the public money,29 bribery,30 [and] perjury31”—each of which

carried a multi-year jail sentence in 1897 or was a felony. The natural reading of

27
Bridgeville Rifle & Pistol Club, Ltd. v. Small, 176 A.3d 632, 642 (Del. 2017).
28
Del. Const. art. VI, § 2.
29
Del. C. 1852, ch. 153, vol. 16, §§ 1–2 (1893) (prescribing up to ten years’ imprisonment for
those convicted of embezzlement).
30
Del. Const. art. V, § 7 (prescribing up to three years imprisonment for those convicted of bribery
related to elections); see also State v. Collins, 17 Del. 420 (Del. Gen. Sess. 1898) (stating that in
“the first case under the new constitution,” defendant guilty of election bribery faced up to three
years in prison).
31
Del. C. 1852, Ch. 130, § 1 (1893) (defining perjury as a felony).
8
“other infamous crime,” then, is as a reference to serious offenses punishable by

felony status or more than one year in prison.32

The convention debates support this inference. Although the discussion of

Section 21 itself was brief,33 the delegates fixed their attention on the meaning of

“infamous crime” when they debated Art. XV, § 6 (“Section 6”), which provides

that “[t]he Governor shall remove from office any public officer convicted of

misbehavior in office or of any infamous crime.” As a textual matter, the separate

enumeration of “misbehavior in office” and “infamous crime” indicates that the

framers saw the offenses as distinct; otherwise, one or the other would be surplusage.

Delegate William C. Spruance echoed this reading, explaining that “misbehavior in

office may not necessarily be an infamous crime.”34 As examples of what would

32
Under the ejusdem generis canon, courts will interpret a general term (here, “other infamous
crime”) to reflect the class of objects described by the more specific terms accompanying it.
William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the Constitution
408 (2016). Another oft-cited treatise has noted that the ejusdem generis canon “often gives rise
to the question how broadly or narrowly to define the class delineated by the specific items
listed. . . . The court has broad latitude in determining how much or how little is embraced by the
general terms.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 207 (2012).
33
3 Debates and Proceedings of the Constitutional Convention of the State of Delaware 2257
(1958) [hereinafter Delaware Constitutional Debates]; see also 4 Delaware Constitutional
Debates 2886. William Saulsbury of Dover introduced Section 21 and began the short debate:
WILLIAM SAULSBURY: This section is entirely new matter. We have at present
no Constitutional provision on the subject.
EDWARD G. BRANFORD: The same provision is found in many of the
constitutions of the states. It seemed to the Committee to be an eminently wise and
proper one.
WILLIAM SAULSBURY: It is only new to our Constitution.
CHAIRMAN COOCH stated the question on agreeing to the section.
Whereupon [Section 21] was adopted
34
4 Delaware Constitutional Debates 2969.
9
constitute an “infamous” crime he listed larceny and robbery, two common-law

felonies.35

Spruance also told his fellow delegates that “[t]here would be no difficulty in

discovering what were infamous crimes[.]”36 Although this dispute may seem to

refute that prediction, it is also the case that the 1880s and 1890s saw a growing

national consensus about the meaning of “infamous crime.” The United States

Supreme Court drove this understanding with a series of decisions interpreting the

Fifth Amendment to the federal Constitution, which guarantees that “[n]o person

shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury[.]”37 In 1885, the Court held in Ex parte

Wilson38 that “a crime punishable by imprisonment for a term of years at hard labor

is an infamous crime[,]” thus requiring an indictment for prosecution. It repeated

this standard twice in the next decade.39 And while the convention debates on

Sections 6 and 21 do not refer to the federal definition of “infamous crime,” most of

35
Id. at 2968; see Del. C. 1852, vol. 13, § 14 (1893) (defining larceny as a felony). At common
law, robbery—which is a larceny accompanied by actual or threatened force—was also a felony.
State v. Campbell, 22 A.2d 390 (Del. Gen. Sess. 1941) (“Robbery at common law has been defined
as ‘the felonious and forcible taking from the person of another good or money of any value, by
violence or putting him in fear.’”).
36
Id. at 2968.
37
U.S. Const. amend. V (emphasis added).
38
Ex parte Wilson, 114 U.S. 417, 429 (1885).
39
Parkinson v. United States, 121 U.S. 281 (1887) (“imprisonment [] for a period longer than one
year . . . makes the crime infamous[.]”); In re Bonner, 151 U.S. 242, 254 (1894) (“infamy is
attached” to “imprisonment [] for a period longer than one year, or at hard labor.”).
10
the delegates were trained in law,40 and the Wilson line of cases impacted all federal

defendants, leading to national attention.41

In our view, 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. That said, we recognize that the evidence is not so conclusive as to establish

a definitive—and case dispositive—historical understanding. We therefore address

next the State’s historical arguments, and then turn to the large body of Delaware

case law that has interpreted Section 21.

2

The State urges us to adopt the interpretation of “infamous crimes” endorsed

by the supreme courts of Pennsylvania and Arkansas. Both states have similar

constitutional provisions, and we have recognized that the decisional law of other

states may be persuasive, especially when there is a “historical convergence”

between the laws or constitutional provisions at issue.42 Here, however, there is no

40
Randy J. Holland, The Delaware State Constitution 23–24 (2d ed. 2017) (“The delegates to the
Convention were a more diverse group than were present at previous conventions. There were
fewer members involved in public service. Only ten of the delegates had served in the General
Assembly prior to the Convention. Law continued to be the primary avocation of many of the
delegates, but there were also numerous businessmen, farmers, three doctors, and two preachers.”).
41
See Criminal Procedure – Effect of Erroneous Sentence, 9 Harv. L. Rev. 220 (1895); Criminal
Procedure – Excessive Sentence – Habeas Corpus – Jurisdiction, 9 Harv. L. Rev. 287 (1895);
Recent Cases, 7 Yale L. J. 141 (Dec. 1897).
42
Juliano v. State, 254 A.3d 369, 378–379 (Del. 2020) (citing Jones v. State, 745 A.2d 856, 866
(Del. 1999)); see Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American
11
such convergence, because Pennsylvania and Arkansas adopted their “infamous

crime” bars long before Delaware enacted Section 21, and in a different historical

context. We therefore decline to follow the lead of either state.

Arkansas enacted its “infamous crime” disqualification provision in 1874.43

The provision predates the Wilson line of cases, where the U.S. Supreme Court

developed a definition of “infamous crime” in the context of the federal Fifth

Amendment’s grand jury guarantee. The Arkansas Supreme Court recognized the

significance of this in State v. Oldner:44

Appellee also relies on several federal cases which have interpreted an
infamous crime consistent with the historical context that a crime is
infamous if it is punishable by imprisonment of more than one year. . . .
While Oldner’s argument might seem persuasive at first blush, it
ignores the fact that [] the Supreme Court’s decision in Wilson was
handed down more than a decade after our most recent Constitution was
drafted.

Thus, while Oldner held that felonies and non-felony crimen falsi45 offenses could

be disqualifying under the Arkansas Constitution, its interpretation was rooted in a

different constitutional history than our own. The same is true of Pennsylvania,

Constitutional Law 17 (2018) (discussing state-specific traditions and their potential impact on
constitutional interpretation).
43
Ark. Const. of 1874, art. 5, § 9.
44
State v. Oldner, 206 S.W.3d 818, 823 (Ark. 2005).
45
The crimen falsi classification dates to Roman law and is generally understood to describe
crimes “the commission of which involve[] some element of deceit, untruthfulness, or falsification
bearing on the accused’s propensity to testify truthfully.” Gregory v. State, 616 A.2d 1198, 1204
(Del. 1992) (internal citations and quotation marks omitted).
12
which also enacted its “infamous crime” bar in in 1874, eleven years before Wilson

was decided and 23 years before Delaware ratified Section 21.46

We decline to follow Pennsylvania’s case law in this area for two more

reasons. First, the “seminal case” cited by the State—Commonwealth v. Shaver47—

interpreted an old disqualification provision that bears little textual similarity to

Delaware’s Section 21. Article VI, § 9 of Pennsylvania’s Constitution of 183848

provided:

All officers for term of years shall hold their offices for the terms
respectively specified, only on the condition, that they so long behave
themselves well; and shall be removed on the conviction of
misbehavior in office, or of any infamous crime.

In Shaver, the Supreme Court of Pennsylvania held that “infamous crimes” were

those that rendered citizens “incapable of being a witness or juror,” and that

disqualifying offenses included “treason, felony, and every species of the crimen

falsi.”49 The textual differences between this provision and Section 21 are critical:

according to Shaver, bribery was not disqualifying because “[bribery has] never been

held to render persons, convicted thereof, infamous or incapable of giving evidence

46
Pa. Const. of 1874, art. II, § 7; see In re Braig, 590 A.2d 284, 286 (Pa. 1991).
47
Commonwealth v. Shaver, 3 Watts & Serg. 338, 1842 WL 4918, at *3 (Pa. 1842).
48
Pa. Const. of 1838, art. VI, § 9.
49
Shaver, 1842 WL 4918, at *4 (emphasis in original) (listing as crimen falsi offenses “such as
forgery, perjury, subornation of perjury, attaint of a false verdict, and other offenses of the like
description, which involve the charge of falsehood, and affect the public administration of
justice.”).
13
or serving as jurors.”50 This conclusion makes little sense in Delaware, because

bribery is an enumerated offense in Section 21.

The second reason we decline to follow Shaver is that the Supreme Court of

Pennsylvania has consistently altered and re-articulated its holding in that case. In

1987, for instance, the Court explained that Shaver was not “sufficiently inclusive

for the modern era.”51 In 2000, it repeated this observation52 and decided that

Shaver’s holding that “infamous crimes” were those that disqualified citizens from

jury service was not good law; instead, only Shaver’s classification of crimen falsi

offenses as “infamous” still controls.53 This was significant because, in Delaware,

misdemeanants are allowed to serve on juries; the only criminal disqualification is

for “convicted felons who have not had their civil rights restored.”54 In any case, the

shifting readings of Shaver suggest that it does not supply the true historical meaning

of “infamous crimes.”

To be clear, we do not criticize the jurisprudence of our sister courts in

Arkansas and Pennsylvania. Instead, we simply find that their interpretations of

50
Id.
51
Petition of Hughes, 532 A.2d 298, 302 (Pa. 1987).
52
Com. ex rel. Baldwin v. Richard, 751 A.2d 647, 653 (Pa. 2000) (“[W]e have held that the
definition espoused in Shaver was ‘not sufficiently inclusive for the modern era[.]’”) (internal
citation omitted).
53
Id. (citing Shaver but rejecting “a mechanical rule whereby we deem a crime infamous solely
on the grounds that it disqualifies one from serving as a juror.”).
54
10 Del. C. § 4509(b)(6).
14
“infamous crimes” do not necessarily reflect the historical meaning of Delaware’s

Section 21.

B

Because the text and historical understanding of Section 21 do not answer the

question before us conclusively, “we next turn to precedent to help us determine the

meaning of ‘infamous crime.’”55 In this step, we consult not only our own decisions

but also the decisions of our State’s trial courts, which are entitled to special weight

when they establish a longstanding interpretation that the legislature has failed to

question.56 That exercise reveals that, 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.

The Superior Court first considered the scope of Section 21’s “infamous

crime” disqualifier in 1970, when General Assembly candidate Johnny B. Johnson

sought to have his conviction for grand larceny stricken from the records of the

court.57 Sitting as a panel, President Judge Stiftel and Judge Christie held that

Johnson had satisfied the statutory requirements for his request and ordered the

55
Advisory Opinion (Pepukayi), 950 A.2d at 653.
56
Id.; LG Electronics, Inc. v. InterDigital Comms., Inc., 114 A.3d 1246, 1249 (Del. 2015); see
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975) (explaining that the
“longstanding acceptance by the courts” of a single interpretation, and the legislature’s “failure to
reject” it, favored approval of the interpretation.); see also Blau v. Lehman, 368 U.S. 403, 414
(1962) (holding that the legislature “is the proper agency to change an interpretation [] unbroken
since its passage.”).
57
State v. John Brice Johnson, 270 A.2d 537 (Del. Super. Ct. 1970).
15
conviction struck.58 The Court noted, however, that Johnson had been arrested on

suspicion of another larceny during his probation period, although no conviction was

recorded.59 Thus, two days later, the panel ruled from the bench that “an infamous

crime, as that phrase is used in our Constitution (Art. 2, Sec. 21), includes only

felony convictions, without deciding that all felony convictions are necessarily

infamous.”60 This decision clarified that Johnson’s larceny arrest did not disqualify

him under Section 21. The Superior Court then confirmed in an opinion that Johnson

was eligible to seek public office.61

In Fonville v. McLaughlin,62 we reversed and held that Johnson was

disqualified from holding public office. We decided, first, that Section 21 only

applies to final judgments of conviction—rather than verdicts or pleas that are not

yet final—because “as used in this constitutional provision creating a disability of

citizenship, the word is to be construed in its narrow sense[.]”63 We then held that

the striking of Johnson’s conviction from court records did not vacate it.64 Thus,

Johnson’s felony grand larceny conviction was still subject to Section 21 review,

58
Id. at 538 (applying 11 Del. C. § 4332(i) (repealed)).
59
Id.
60
McLaughlin v. Dep’t of Elections for New Castle Cty., 1970 WL 104909, at *1 (Del. Super. Ct.
Oct. 15, 1970).
61
McLaughlin v. Dep’t of Elections and Johnson, No. 728, 1970, slip op. at 6 (Del. Super. Ct. Oct.
19, 1970). Ex. B to Answering Br.
62
Fonville v. McLaughlin, 270 A.2d 529, 530 (Del. 1970).
63
Id.
64
Id.
16
and we decided that it was an “infamous crime.”65 We did not question the Superior

Court’s explicit ruling that misdemeanors could not be infamous crimes.

We next encountered Section 21 in 1976. In State ex rel. Wier v. Peterson,66

the Attorney General sought a declaratory judgment that Edward Peterson was

constitutionally barred from holding public office. Only felony convictions were

before the Court, but we did not even suggest the possibility that misdemeanor

convictions could be disqualifying. We explained that Fonville established that

felony grand larceny was an infamous crime but held that “[i]t does not follow

. . . that [e]very felony is necessarily a crime of infamy.”67 Instead, “the totality of

the circumstances in each case must be examined before a determination may be

made that a specific felony is infamous.”68 We concluded that Peterson’s

convictions for felony sodomy in Pennsylvania were disqualifying under

Section 21.69

We pause here to note that the Superior Court’s analysis in this case depends

on an expansive reading of Peterson. The court took note of Peterson’s examination

of the totality of the circumstances and observed that we described Section 21 as “a

character provision” establishing a “demanding norm.”70 In turn, the court found

65
Id. at 531.
66
State ex rel. Wier v. Peterson, 369 A.2d 1076 (Del. 1976).
67
Id. at 1079.
68
Id.
69
Id.
70
Capriglione, 2021 WL 1784084, at *7.
17
that our “statement about the purpose of § 21 transcends the felony-misdemeanor

distinction,” concluding, in essence, that any crime could qualify as “infamous” if

the conduct fell short of this important, yet indeterminate, norm.71 But, in our view,

Peterson does not support this step in the court’s analysis; the court’s reading

overlooks the fact that the totality of the circumstances test was employed in

Peterson not to open the door to an extension of Section 21’s reach to misdemeanors,

but to determine whether the specific felonies of which Peterson was convicted were

“infamous” within Section 21’s meaning.

Returning to our review of this Court’s prior encounters with Section 21 and

their influence on the Superior Court, we note that in both Fonville and Peterson we

addressed the scope of Section 21 without disturbing the Superior Court’s holding

that only felonies could be disqualifying. These opinions led the Superior Court to

decide in Holloway v. State Dep’t of Elections for New Castle County72 that we had

blessed the decision of President Judge Stiftel and Judge Christie in McLaughlin. At

issue in Holloway was a candidate for election to the General Assembly who had

been convicted on misdemeanor counts of tax evasion and making false statements.73

These offenses were quintessential examples of crimen falsi. But, after quoting from

71
Id. at *8.
72
Holloway v. State Dep’t of Elections for New Castle Cty., 1992 WL 149511 (Del. Super. Ct.
June 25, 1992).
73
Id. at *1.
18
McLaughlin, Fonville, and Peterson, the Superior Court explained that “[r]elying on

these precedents . . . plaintiff’s misdemeanor convictions were not convictions for

‘infamous crimes’ as contemplated by the Delaware Constitution.”74

This unbroken line of decisions continued in Dorcy v. City of Dover Bd. of

Elections.75 In Dorcy, the plaintiff sought a declaration that his Ohio misdemeanor

convictions for sexual assault were not disqualifying under Delaware law. 76 The

Superior Court made two holdings. First, the Court explained that it was “unwilling

to overturn decisional law in this State and hold that a misdemeanor can ever be an

infamous crime[.]”77 Second, the Court found that the plaintiff’s Ohio misdemeanor

satisfied the elements of a Delaware felony and was disqualifying under Section 21.

We affirmed.78 Our order explained that the plaintiff’s Ohio conviction

“would constitute the analogous crime in Delaware of attempted unlawful sexual

contact in the second degree, a felony.”79 We then held that the plaintiff’s specific

felony was an “infamous crime” under Section 21.80 While our disposition was brief,

it did not disturb the Superior Court’s reasoning that, under the felony-only doctrine

74
Id. at *2 (internal citations omitted).
75
Dorcy v. City of Dover Bd. of Elections, 1994 WL 146012 (Del. Super. Ct. March 25, 1994)
aff’d, 642 A.2d 836 (Del. 1994) (TABLE).
76
Dorcy, 1994 WL 146012, at *6.
77
Id.
78
Dorcy v. City of Dover Bd. of Elections, 642 A.2d 836, 1994 WL 151030 (Del. 1994) (TABLE).
79
Id. at *1.
80
Id.
19
developed in McLaughlin, Fonville, Peterson, and Holloway, the Ohio conviction at

issue in Dorcy could only be disqualifying if it was a felony under Delaware law.81

Our most recent encounter with Section 21 came in 2008, when Governor

Ruth Ann Minner requested an advisory opinion relating to the nomination of

Bernard Pepukayi to the office of Family Court Commissioner.82 Pepukayi had been

convicted of two drug-related felonies shortly after turning 18.83 We concluded that

Pepukayi—who was 17 when he committed the crimes—was not disqualified under

Section 21, quoting Peterson for the proposition that “not every felony is necessarily

an ‘infamous crime.’”84 Inquiring into the circumstances of Pepukayi’s felonies, we

gave “considerable thought to our General Assembly’s enactments that direct us to

the manner in which the people’s representatives believe Article II, Section 21

should be interpreted today.”85 We found that the General Assembly’s stated goal

of promoting “rehabilitation rather than retribution” for juvenile offenders was

strong evidence that most crimes committed by minors are not “infamous.”86

81
To be clear, we do not suggest that our Orders in McLaughlin and Dorcy amounted to a tacit
acceptance of the Superior Court’s reasoning in the appealed decisions. We simply observe that
the decisional law pertinent to this case has percolated through the Superior Court and this Court
for more than five decades.
82
Advisory Opinion (Pepukayi), 950 A.2d at 652.
83
Id.
84
Id. at 653 (quoting Peterson, 369 A.2d at 1079).
85
Advisory Opinion (Pepukayi), 950 A.2d at 655.
86
Id. at 655–657.
20
 In sum, before this case, the Superior Court had consistently held in decisions

dating to 1970 that only felonies can be considered “infamous” under Section 21.

Meanwhile, the General Assembly’s only activity in this area has been to enact a

statute, § 7555(c)(1), that prevents felons from holding municipal offices as a default

rule—that is, unless a town’s charter says otherwise—but says nothing about

misdemeanants. Thus, while it is true that we have never approved of the

McLaughlin rule in a formal holding, settled Delaware law dictates one result. We

therefore hold that only felonies can be considered “infamous” under Article II,

Section 21 of the Delaware Constitution.

V

In closing, we observe that, when the delegates to the Convention of 1897

gathered in Dover, neither the city nor the State had a professional police force.87

The Wilmington Police Department had only hired professional officers since

1891.88 As a result, community police forces operated as “civil servants of general

resort,” and did not focus narrowly on crime control.89 In 1897, the Delaware

87
The State of Delaware, History of the Delaware State Police, https://dsp.delaware.gov/about-
the-agency/ (last visited Sept. 28, 2021) (“On April 23, 1923, the General Assembly, at the request
of the State Highway Department, enacted two laws that created the Delaware State Police.”).
88
The City of Wilmington, WPD History, https://bit.ly/3lvwFNU (last visited Sept. 28, 2021) (“In
1891, the Delaware State Legislature passed the Metropolitan Police Act, which professionalized
the Wilmington Police Department and called for the hiring of officers based on their ability to
perform the job, rather than political appointments.”).
89
Erik H. Monkkonen, History of Urban Police, 15 Crime & Just. 547, 557–558 (1992); William
J. Stuntz, The Collapse of American Criminal Justice 30–31, 132–134 (2011) (describing low
conviction numbers and “remarkably small” prison populations during the end of the 1800s).
21
criminal statutes enumerated fewer than 75 offenses.90 Today, by contrast, Title 11

of the Delaware Code lists more than 350 specific crimes and other parts of the Code

enumerate many more.91 This growth is not unique to our state: nationwide, the

authorities file approximately 13 million misdemeanor cases per-year, a number that

corresponds to 42.6-per-1000 people.92

When coupled with the State’s view that any conviction, given certain facts,

can disqualify a citizen from public service, our modern tendency to sweep

previously unregulated conduct into the criminal law’s purview would extend

Section 21’s reach far more broadly than originally intended. We believe that the

decisions of the General Assembly, the Superior Court, and this Court have correctly

recognized this risk when interpreting Section 21. We therefore hold that only

felonies can be “infamous” crimes under the Delaware Constitution.

VI

As previously stated in our July 16, 2021 order, we reverse the judgment of

the Superior Court.

90
See Del. C. 1852, tit. 20, chs. 126-132 (1893).
91
11 Del. C. §§ 501-1474; See, e.g., 16 Del. C. §§ 4701–4799 (Controlled Substances Act).
92
Sandra G. Mayson & Megan T. Stevenson, Misdemeanors By The Numbers, 61 B.C. L. Rev.
971, 998 (2020) (excluding non-DUI traffic offenses); cf. William J. Stuntz, The Pathological
Politics of Criminal Law, 100 Mich. L. Rev. 505, 511 (2001) (arguing that state codes “criminalize
everything and everyone[.]”); see also Neil M. Gorsuch, A Republic, If You Can Keep It 242, 247–
248 (2019) (“Our criminal justice system suffers from its own grave problems. According to the
Heritage Foundation, the federal statutory books today contain more than an estimated 4,500
criminal laws, most of very recent vintage. And that doesn’t even begin to account for criminal
laws at the state and local levels[.]”).
22
VAUGHN, Justice, concurring:

I agree that “infamous crimes” in Article II, § 21 is limited to felonies and

does not include misdemeanors. I join in the Court’s opinion except for Part V. Part

V is not relevant to my analysis of the case.

23