IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TERRI MICHELLE REYLEK, )
)
Petitioner, )
)
v. ) C.A. No. K22M-07-010 NEP
)
ANTHONY J. ALBENCE, )
)
Respondent. )
Submitted: April 17, 2023
Decided: July 19, 2023
MEMORANDUM OPINION AND ORDER
Upon Respondent’s Motion to Dismiss Petitioner’s Amended Petition
GRANTED IN PART AND DEFERRED IN PART
Terri Michelle Reylek, Dover, Delaware, Pro Se Petitioner.
Nicholas D. Picollelli, Jr., Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Respondent.
Primos, J.
Before this Court is the motion to dismiss filed by Respondent Anthony J.
Albence, State Election Commissioner (hereinafter the “Election Commissioner”),
seeking dismissal of the Amended Petition for Writ of Mandamus (hereinafter the
“Amended Petition”) filed pro se by Petitioner Terri Michelle Reylek (hereinafter
“Reylek”). For the reasons that follow, the Motion to Dismiss is GRANTED IN
PART AND DEFERRED IN PART. Reylek’s Amended Petition is DISMISSED
with respect to the requests for mandamus relief—Counts 2 through 5 of the
Amended Petition.1 Decision is DEFERRED with respect to dismissal of Count
1—the request for a declaratory judgment—pending supplemental briefing as
outlined at the close of this Memorandum Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to 15 Del. C. § 5000A, “[i]n any general, special, or primary
elections, an electronic voting system must be used and must comply with the
requirements of this chapter,” i.e., the requirements of Chapter 50A of Title 15 of
the Delaware Code. Reylek, a registered voter in the State of Delaware, seeks
mandamus and declaratory relief on the basis that Delaware’s electronic voting
systems are not properly certified pursuant to 15 Del. C. § 5001A, which provides
in relevant part as follows:
A voting device or system purchased by the State must be certified by
the United States Election Assistance Commission, or designated
federal authority, as meeting or exceeding the voluntary voting systems
standards or guidelines as promulgated by the United States Election
Assistance Commission, or designated federal authority, before
delivery to and acceptance by the State.2
On January 10, 2023, the Court dismissed Reylek’s original petition for
mandamus, in which she sought, in various ways, to prevent the further use of the
1
The Court refers to each prayer for relief in the Amended Petition as a separate “Count,” although
the Amended Petition does not differentiate the factual basis for each prayer for relief.
2
15 Del. C. § 5001A(c).
2
allegedly uncertified electronic voting systems in Delaware elections.3 The Court
incorporates by reference the Factual and Procedural Background in the
Memorandum Opinion and Order dismissing that Petition.4
The factual allegations in the Amended Petition substantively mirror the
original, which the Court previously summarized as follows:
The Petition alleges that Delaware’s electronic voting machines are not
properly certified by the United States Election Assistance Commission
(“EAC”), in violation of 15 Del. C. § 5001A. The crux of the Petition’s
allegation appears to be that the laboratory that tested the voting
machines, Pro V & V, Inc., was not properly accredited because 1) the
EAC Certificate of Accreditation was signed by the EAC’s Executive
Director, rather than by the EAC’s Chairperson, in violation of a
provision of a Testing & Certification Program Manual promulgated by
the EAC, in 2015 and 2) the proper procedures were not followed to
reaccredit the lab after a lapse in its accreditation.5
In other words, Reylek’s primary contention is that the voting system test laboratory
(“VSTL”) that tested Delaware’s electronic voting systems was not properly
accredited with the EAC.
The Court never addressed those allegations on the merits, holding only that
the requests for relief (several of which were explicitly phrased as requests for
injunctive relief), were outside of this Court’s authority on a petition for mandamus.6
3
See Reylek v. Albence, 2023 WL 142522, at *1, *7 (Del. Super. Jan. 10, 2023). The Court had
previously denied Reylek’s motion to expedite proceedings prior to the November 2022 election,
finding that a petition for mandamus was not an appropriate vehicle to obtain prohibitory,
injunctive relief to affect a then-upcoming election. See Reylek v. Albence, 2022 WL 13785951,
at *2 (Del. Super. Oct. 24, 2022).
4
See Reylek, 2023 WL 142522, at *1–2.
5
Id. at *1 (internal footnotes and citations omitted). For an explanation of the certification and
accreditation functions of the EAC, and a summary of similar allegations regarding, inter alia, the
validity of voting system certifications by Pro V & V, see Graeff v. United States Election
Assistance Comm’n, 2023 WL 2424267, at *2–3 (E.D. Mo. Mar. 9, 2023).
6
Reylek, 2023 WL 142522, at *6. Both of the Election Commissioner’s motions to dismiss have
been directed at the adequacy of the relief requested, and neither has addressed the factual or legal
merits of Reylek’s allegations.
3
The dismissal was without prejudice, and Reylek was given an opportunity to file an
amended petition.7 On January 20, 2023, Reylek filed an Amended Petition for a
Writ of Mandamus, with essentially the same factual allegations but modified
requests for relief.8 Specifically, Reylek rephrased the mandamus relief requested,
invoked one new statutory basis for mandamus relief, and added a declaratory
judgment count.
First, while Reylek’s pleading is styled as a petition for a writ of mandamus,
Count 1 of the Amended Petition requests a “Declaratory Judgement that NO voting
systems/machines are legal for use in Delaware elections unless they are legally
certified pursuant to Title 15, § 5000A, 5001A(11)-(C), 29 Del. C. § 10001, and
meet all the requirements outlined in the Help America Vote Act (HAVA) of 2002,
as long as Delaware Code mandates compliance [sic].”9 Counts 2 through 4 request
mandamus relief compelling the Election Commissioner to 1) “act pursuant to Title
15, § 5000A, 5001A(11)-(C), 29 Del. C. § 10001 to ONLY employ valid and legally
certified voting system/machines within the State of Delaware” [sic]; 2) “uphold the
Constitution of the State of Delaware and the Constitution of the United States . . .
[i]ncluding the US Constitution, Amendments 1 & 14, the Help America Vote Act
(HAVA) of 2002, and Delaware Titles 15 and 29”; and 3) “act in pursuant to [sic]
Title 15, Chapter 51 § 5102(b) by notifying the Delaware Attorney General of all
violations” of Title 15 of the Delaware Code.10 Finally, in Count 5, Reylek asks the
Court “to compel the State Attorney General, Kathy Jennings, to act in pursuant to
7
Id. at *6–7.
8
Am. Pet. for Writ of Mandamus (D.I. 21) [hereinafter “Am. Pet.”].
9
Id. at 30. The Help America Vote Act (“HAVA”), specifically 52 U.S.C. § 20971, relates to
Reylek’s allegations because it outlines the EAC’s role in certification and accreditation of voting
systems and provides for the optional use of those services by the states. See Reylek, 2023 WL
142522, at *1 n.2. It is not clear why Reylek continues to cite 29 Del. C. § 10001, which is the
Declaration of Policy for Delaware’s Freedom of Information Act (“FOIA”). No request for
production has been made under FOIA in the Amended Petition.
10
Am. Pet. at 30–31.
4
[sic] Title 15, Chapter 51 § 5102(b), by prosecuting all violations” of Title 15.11
Attorney General Jennings is not a party to this action.
On February 7, 2023, the Election Commissioner moved to dismiss the
Amended Petition, arguing once again that Reylek had failed to request any valid
relief suitable for a mandamus action.12 Reylek filed a response to the motion to
dismiss on February 21, 2023.13 On March 8, 2023, the Court sent a letter to the
parties requesting supplemental briefing on whether the “actual controversy”
prerequisite for a declaratory judgment action had been met and whether the Court,
in its discretion, should entertain such an action on the facts alleged.14 Reylek and
the Election Commissioner filed their supplemental briefs on March 24, 2023, and
March 28, 2023, respectively.15 Reylek filed a response to the Election
Commissioner’s supplemental brief on April 3, 2023,16 and the Election
Commissioner filed a response to Reylek’s supplemental brief on April 6, 2023.17
STANDARD OF REVIEW
When the Court considers a motion to dismiss for failure to state a claim
pursuant to Superior Court Civil Rule 12(b)(6), “(i) all well-pleaded factual
allegations are accepted as true; (ii) even vague allegations are well-pleaded if they
give the opposing party notice of the claim; (iii) the Court must draw all reasonable
inferences in favor of the non-moving party; and [(iv)] dismissal is inappropriate
11
Id. at 32. Counts 6 and 7 duplicate the requests in the original petition for a “speedy hearing”
and any other relief the Court deems necessary. Id.
12
Resp’t’s Mot. to Dismiss Terri Michelle Reylek’s Am. Pet. for a Writ of Mandamus (D.I. 24)
[hereinafter “Mot. to Dismiss”].
13
Reply to Resp’t’s Mot. to Dismiss of Terri Michelle Reylek’s Am. Pet. (D.I. 26) [hereinafter
“Resp. to Mot. to Dismiss”].
14
D.I. 27.
15
Suppl. Br. Addressing Decl. J. Relief (D.I. 28) [hereinafter “Pet’r’s Suppl. Br.”]; Resp’t’s Suppl.
Br. in Support of his Mot. to Dismiss Terri Michelle Reylek’s Am. Pet. for a Writ of Mandamus
(D.I. 29) [hereinafter “Resp’t’s Suppl. Br.”].
16
Reply to Resp’t’s Suppl. Br. Addressing Decl. J. Relief (D.I. 30).
17
Resp’t’s Resp. to Terri Michelle Reylek’s Suppl. Br. Addressing Decl. J. Relief (D.I. 31).
5
unless the plaintiff would not be entitled to recover under any reasonably
conceivable set of circumstances susceptible of proof.”18
In addition, “[a] pro se pleading is judged by a ‘less stringent standard’ than
a pleading or document filed by an attorney.”19 However, “[t]here is no different set
of rules for pro se plaintiffs, and the trial court should not sacrifice the orderly and
efficient administration of justice to accommodate an unrepresented plaintiff.”20
Finally, “[w]henever it appears by suggestion of the parties or otherwise that
the Court lacks jurisdiction of the subject matter, the Court shall dismiss the
action.”21 “Notably, ‘[t]he burden of establishing the Court’s subject matter
jurisdiction rests with the party seeking the Court’s intervention.’”22
ANALYSIS
The Court initially addresses the mandamus counts in the Amended Petition
before turning to the declaratory judgment count. First, the Court will dismiss the
counts asking for a writ of mandamus compelling the Election Commissioner to use
only certified voting systems and to uphold the federal and Delaware constitutions
and the Delaware Code for reasons similar to those given in its previous
Memorandum Opinion and Order. As for the mandamus counts predicated on 15
Del. C. § 5102, the Court finds that the statute does not establish a clear legal right
to the performance of a ministerial duty either to report or to prosecute the alleged
18
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (internal citations and quotation
marks omitted).
19
Mason v. Dover Fed. Credit Union, 2018 WL 4026554, at *2 (Del. Super. Aug. 22, 2018)
(quoting Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982)).
20
Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).
21
Super. Ct. Civ. R. 12(h)(3).
22
B&B Fin. Servs., LLC v. RFGV Festivals, LLC, 2019 WL 2006487, at *3 (Del. Super. May 2,
2019) (alteration in original) (quoting Airbase Carpet Mart, Inc. v. AYA Associates, Inc., 2015 WL
9302894, at *2 (Del. Super. Dec. 15, 2015)).
6
statutory violations. Accordingly, for reasons explained more fully herein, the
mandamus counts for relief shall be dismissed.
The declaratory judgment count presents a closer question. The Court is not
persuaded by the Election Commissioner’s arguments that Reylek cannot obtain
prohibitive relief via a declaratory judgment action or that the matter is unripe for
decision. However, the Court requires supplemental briefing on whether 15 Del. C.
§§ 5000A and 5001A create an implied private right of action to sustain an actual
controversy for declaratory judgment purposes. Decision on the declaratory
judgment count is accordingly deferred.
I. Writ of Mandamus
29 Del. C. § 10143 provides that “[a]ny person aggrieved by the failure of an
agency to take action required of it, by law, may bring an action in the Court for an
appropriate writ of mandamus.” “Mandamus is an exceptional remedy that is not
available as a matter of right, but rather, is issued only according to the ‘sound
judicial discretion’ of the court in which mandamus is sought.”23 It is only
appropriate for a Court to grant a writ of mandamus “when a plaintiff is able to
establish a clear legal right to the performance of a non-discretionary duty.”24
“[W]hen directed to an administrative agency or public official, mandamus will issue
only to require performance of a clear legal or ministerial duty[,]” i.e., “the duty
must be prescribed with such precision and certainty that nothing is left to discretion
or judgment.”25 The Court has “broad discretion” to deny a petition where, inter
alia, the legal duty is not clear, the petitioner has another remedy available, or
granting the writ would be either inequitable or useless.26
23
Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015) (internal citation omitted)
(quoting Ingersoll v. Rollins Broad. of Del., Inc., 272 A.2d 336, 338 (Del. 1970)).
24
Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A.2d 209, 210 (Del. 1975).
25
Guy v. Greenhouse, 637 A.2d 827, 1993 WL 557938, at *1 (Del. 1993) (TABLE).
26
Brittingham, 113 A.3d at 524–25.
7
First, the Court agrees with the Election Commissioner that Count 2 of the
Amended Petition is substantively similar to the request for prohibitory relief
previously rejected by the Court. The purported distinction between prohibiting the
Election Commissioner from using uncertified electronic voting systems and
requiring him to use only certified electronic voting systems is a matter of phrasing,
not of substance. The Court has already explained that “the problem is not how the
request is phrased, but the nature of the relief sought.”27 In light of Reylek’s
allegation that there are no properly certified electronic voting systems currently
available for use in the State of Delaware, the clear implication of Count 2 is that it
would bar the Election Commissioner from using electronic voting systems in an
upcoming election. This remains prohibitive relief unsuitable for a mandamus
action, and the Court declines to reconsider a relief request already dismissed in a
previous decision.
Likewise, the Court has already explained that it cannot grant mandamus
relief compelling a public official to uphold generally the state or federal
constitution, which Reylek asks for again in Count 3 of the Amended Petition. While
Reylek has supplemented this request with references to specific constitutional
articles and amendments, the request still amounts to a writ ordering the Election
Commissioner to obey the law. “While ‘[p]ublic officials are, of course, expected
to obey the law,’ an order to do so ‘does not constitute the specific, clear cut
command required in a writ of mandamus.’”28 Her additional references to the Help
America Vote Act (HAVA) and Titles 15 and 29 of the Delaware Code are also
27
See Reylek, 2023 WL 142522, at *3 n.31 (“Whether the request is phrased as an order to ‘cease
use of all illegal ES&S voting systems/machines,’ . . . or ‘to ONLY employ valid and legally
certified voting system[s]/machines,’ . . . the object of the suit was to prevent Respondent from
using the electronic voting machines currently owned by the State of Delaware in an election.”)
28
Id. at *6 (alteration in original) (quoting Pleasonton v. Hugg, 2010 WL 5313228, at *1 (Del.
Super. Nov. 29, 2010)).
8
unavailing. A writ of mandamus directing the Election Commissioner to uphold, for
example, all of Title 15 of the Delaware Code would go far beyond rectifying
Reylek’s specific alleged violations. Reylek nonetheless argues that, in light of her
detailed allegations, “the relief request is very specific.”29 However, in order to
obtain mandamus relief, a petitioner must identify a duty “prescribed with such
precision and certainty that nothing is left to discretion or judgment.”30 Alleging a
statutory violation, and asserting that a particular state official is responsible for
correcting said violation, is not equivalent to identifying a clear, ministerial duty to
be performed by a public official.
Counts 4 and 5 of the Amended Petition are both rooted in 15 Del. C. § 5102,
which provides in subsection (a) that the “Attorney General shall immediately
prosecute to final judgment all complaints which may be made of a violation of this
title” and in subsection (b) that the “Department of Elections and all election officers
shall notify the Attorney General of all violations of this title.” In Count 4, Reylek
seeks a writ of mandamus compelling the Election Commissioner to act pursuant to
15 Del. C. § 5102(b) “by notifying the Delaware Attorney General of all violations
to this title [sic].”31 Construed liberally, what she seeks is a writ of mandamus
directing the Election Commissioner to notify the Delaware Attorney General of the
specific allegation that the voting systems are uncertified. Assuming arguendo that
the State Election Commissioner has a mandatory duty to report all known violations
of Title 15 to the Attorney General,32 it does not follow that Reylek has a “clear legal
29
Resp. to Mot. to Dismiss at 5.
30
Greenhouse, 1993 WL 557938, at *1.
31
Am. Pet. at 30.
32
“Election officers” are defined in Title 15 to include “the inspector of election, the 2 judges of
election and the clerks of election who are appointed for each election district” to serve in polling
places. 15 Del. C. §§ 101(9) and 4702. Reylek argues that the Election Commissioner serves as
an ex oficio member of the State Board of Elections, which is a voting faction within the
Department of Elections, and that he therefore is “included in the group of officials that SHALL
notify the Attorney General.” Resp. to Mot. to Dismiss at 5.
9
right” to have her alleged violations relayed to the Attorney General via the State
Election Commissioner. The Court previously held that Reylek had failed to
establish a clear legal right to compel the Election Commissioner to investigate her
allegations.33 Moreover, nothing prevents an individual citizen such as Reylek from
relaying her own allegations directly to the Attorney General, and any purported
right to have the State Election Commissioner do so in her stead is doubtful at best.
“If the right be doubtful, mandamus will not lie.”34
Finally, in Count 5, Reylek seeks a writ of mandamus compelling Attorney
General Kathy Jennings to prosecute all violations of Title 15.35 First, the Court
notes that Reylek has not attempted to add the Attorney General to this action as a
defendant.36 Moreover, Reylek has not identified an alleged offense that the
Attorney General could prosecute to final judgment. Chapter 51 of Title 15, titled
“Criminal Offenses,” enumerates a variety of specific election-related offenses.
Reylek’s allegations, however, are based entirely in Chapter 50A (titled “Electronic
Voting Systems”), which—at least on its face—does not carry any civil or criminal
penalties. In any event, it is far from clear whom Reylek wants the attorney general
to prosecute for these alleged violations.
33
Reylek, 2023 WL 142522, at *5.
34
State ex rel. Lyons v. McDowell, 57 A.2d 94, 97 (Del. 1947).
35
Am. Pet. at 32.
36
Reylek argues that the Attorney General is an “interested party or third party to this case” and
cites, inter alia, Superior Court Civil Rule 8(a) for the proposition that she can proceed with a
third-party claim without formally adding that party to the case. Resp. to Mot. to Dismiss at 5–6.
This argument reflects a misunderstanding of the nature of a third-party claim. “Superior Court
Civil Rule 14(a) allows a defendant, as a third-party plaintiff, to file a claim against a non-party
‘who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against
the third-party plaintiff.’” Two Farms, Inc. v. Davis, Bowen & Friedel, Inc., 2018 WL 6721379,
at *2 (Del. Super. Dec. 19, 2018). “[O]nce a proper third-party claim is stated under Rule 14(a),
a third-party plaintiff may advance any other claims it may have against the third-party defendant
pursuant to Superior Court Civil Rule 18.” Id. at *4. If Reylek seeks an order directly compelling
action from the Attorney General (as opposed to indirectly affecting the Attorney General), she
should have joined her to the action as a defendant pursuant to Superior Court Civil Rule 20, which
provides for the permissive joinder of parties.
10
With respect to both Counts 4 and 5, the Court observes that the only purpose
of invoking 15 Del. C. § 5102(b) within a mandamus action is to obtain a judicial
determination that a violation in fact occurred in the first place. Reylek’s requests,
across both her original and amended petitions, implicate broad powers of executive
branch officials to investigate, report, and prosecute violations of law. A writ of
mandamus, however, is appropriate only to compel the performance of clear,
ministerial duties. Its purpose is not to encroach on these executive functions by
conducting judicial proceedings (e.g., an evidentiary hearing) on whether a violation
of Title 15 has occurred, so that the Court can then order executive branch officials
to “report” or “prosecute” violations that have already been proven to the Court’s
satisfaction. Considerations of both judicial economy and separation of powers
weigh heavily against such a broad exercise of the Court’s mandamus power.
For the reasons above, the Court concludes that Counts 2 through 5 of the
Amended Petition fail to state a claim upon which mandamus relief can be granted,
and those counts are therefore DISMISSED.
II. Declaratory Judgment
Reylek’s remaining relief request is for a “Declaratory Judgement that NO
voting systems/machines are legal for use in Delaware elections unless they are
legally certified pursuant to Title 15, § 5000A, 5001A(11)-(C), 29 Del. C. § 10001,
and meet all the requirements outlined in the Help America Vote Act (HAVA) of
2002, as long as Delaware Code mandates compliance [sic].”37 At the outset, the
Court notes that the fact that a pro se pleading is styled as a petition for mandamus
does not prevent the Court from considering an otherwise properly pleaded request
for declaratory relief. For this reason, the Court finds unpersuasive the Election
Commissioner’s argument that Count 1 should be dismissed merely because the
37
Am. Pet. at 30.
11
Court already held that a similar request was “outside its mandamus jurisdiction, and
. . . should do so again here.”38
Pursuant to the Declaratory Judgment Act, 10 Del. C. §§ 6501–6513, this
Court has the power to “declare rights, status and other legal relations whether or not
further relief is or could be claimed.”39 “The declaration may be either affirmative
or negative in form and effect, and such declaration shall have the force and effect
of a final judgment or decree.”40 The “purpose of the Declaratory Judgment Act is
to enable the courts to adjudicate a controversy prior to the time when a remedy is
traditionally available and, thus, to advance to stage [sic] at which a matter is
traditionally justiciable.”41
Before entertaining a declaratory judgment action, a Delaware court must first
make a threshold determination that an “actual controversy” exists.42 An “actual
controversy” has four elements:
(1) It must be a controversy involving the rights or other legal relations
of the party seeking declaratory relief; (2) it must be a controversy in
which the claim of right or other legal interest is asserted against one
who has an interest in contesting the claim; (3) the controversy must be
between parties whose interests are real and adverse; (4) the issue
involved in the controversy must be ripe for judicial determination.43
Since the actual controversy requirement is jurisdictional, Reylek bears the burden
of establishing all four elements, and it cannot be waived by agreement or concession
of the parties.
38
Mot. to Dismiss at 4 (internal citation omitted).
39
10 Del. C. § 6501.
40
Id.
41
Diebold Computer Leasing, Inc. v. Commercial Credit Corp., 267 A.2d 586, 591–92 (Del.
1970).
42
XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1216 (Del. 2014) (quoting Gannett
Co., Inc. v. Bd. of Managers of the Delaware Criminal Justice Info. Sys., 840 A.2d 1232, 1237
(Del. 2003)).
43
Id. at 1217 (quoting Stroud v. Milliken Enterprises, Inc., 552 A.2d 476, 479–80 (Del. 1989)).
12
Even if an actual controversy exists, a trial court still “has discretion in
determining whether to entertain a declaratory judgment action.”44 “This discretion
should be liberally exercised in order to advance the remedial purpose of the Act.”45
However, the Court nonetheless “may refuse to enter a declaratory judgment when
granting such a judgment ‘will not terminate the uncertainty or controversy giving
rise to the proceeding.’”46 Finally, while the “mere availability of another adequate
remedy does not in and of itself weigh against the giving of declaratory relief,” the
Court may properly decline to entertain a declaratory judgment action where another
remedy would be more “effective or efficient.”47
As explained supra, the Court requested supplemental briefing from the
parties on whether an actual controversy exists in this case, and on whether the Court
should exercise its discretion to entertain this action. Reylek’s submission addressed
all four prongs of the actual controversy test, arguing that 1) the controversy involves
her “legal right to vote in a verifiably secure way” and “the legality of the
machines/systems [she is] required to use to exercise [her] right to vote”; 2) the
Election Commissioner’s “lack of action and/or response” demonstrates his interest
in contesting the claim; 3) the Election Commissioner’s silence shows that his
interest is “real and adverse” to Reylek’s; and 4) the action is ripe because it “pertains
to current law, violated rights, future violations, and facts.”48 The Election
44
Id. at 1216; see also Ramos v. Headstrong Grp., Inc., 2023 WL 315333, at *1 (Del. Super. Jan.
19, 2023) (“The grant of a declaratory judgment in Superior Court is a matter within the sound
discretion of the Court.”).
45
Burris v. Cross, 583 A.2d 1364, 1372 (Del. Super. 1990); see also 10 Del. C. § 6512 (“This
chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and
insecurity with respect to rights, status and other legal relations; and is to be liberally construed
and administered.”).
46
Delaware State Sportsmen’s Ass’n v. Garvin, 196 A.3d 1254, 1260 (Del. Super. 2018) (quoting
10 Del. C. § 6506).
47
Clemente v. Greyhound Corp., 155 A.2d 316, 321 (Del. Super. 1959).
48
Pet’r’s Suppl. Br. at 4–6.
13
Commissioner’s supplemental brief addresses only the fourth prong of the actual
controversy test, arguing that the action is not yet ripe because 1) the Amended
Petition fails to allege that there is “an imminent Delaware election that will use the
allegedly uncertified voting machines” and 2) the machines “may very well be
properly certified or replaced with certified machines between now and an unknown
future election date.”49
First, the Court is not persuaded by the Election Commissioner’s argument
that the action is unripe. “A case is ripe for judicial review when the dispute has
matured to the point where the plaintiff has suffered or will imminently suffer an
injury.”50 The Court may hear a dispute only if, based upon a “‘common sense
assessment’ of the facts, . . . ‘litigation sooner or later appears to be unavoidable and
where the material facts are static.’”51 Decision is premature if the “facts are still
unknown or changing,” lest the Court risk “offering only advice and a premature
binding decision.”52
Here, both a liberal construction of the Amended Petition53 and a common
sense assessment of the facts support a conclusion that the action is ripe (insofar as
an actual controversy otherwise exists). Despite Reylek’s failure to plead a specific
upcoming election date, it cannot reasonably be disputed that the State of Delaware
will continue to hold elections on a regular basis, and that it will follow its statutory
mandate to use electronic voting systems in those elections.54 The Amended Petition
alleges that Delaware’s electronic voting systems are not legally certified and that
49
Resp’t’s Suppl. Br. at 4. In their respective replies, the parties debated whether a school board
election scheduled for May of 2023, now past, made the action ripe for review.
50
Town of Cheswold v. Cent. Delaware Bus. Park, 188 A.3d 810, 816 (Del. 2018).
51
Id. (quoting XL Specialty, 93 A.3d at 1217).
52
Id.
53
See Tigani v. Fisher Dev. Co., 2022 WL 1039969, at *2 (Del. Super. Apr. 6, 2022) (“Pro se
pleadings generally are construed more liberally than counseled ones.”).
54
15 Del. C. § 5000A.
14
they were nonetheless used in both the 2020 and 2022 elections. It is a reasonable
inference from the Amended Petition that the State will continue to use those
electronic voting systems in upcoming elections. The mere possibility, alluded to
by the Election Commissioner, that the machines could be “properly certified or
replaced” before the next election is not enough to defeat the Amended Petition on
ripeness grounds. While such a development would likely render this action moot,
the Court concludes, absent any serious indication that the Election Commissioner
intends to address Reylek’s allegations, that the material facts are sufficiently
static—and not unknown or changing—to satisfy the ripeness requirement for a
declaratory judgment action.
The fixed and recurring nature of elections distinguishes this case from Guy
v. City of Wilmington,55 on which the Election Commissioner relies. In Guy, a
member of the Wilmington City Council sought a declaration that the prior removal
of a different councilmember had been procedurally improper.56 The plaintiff
claimed the existence of an actual controversy based on his “concern that similar
actions by the Council to remove him or other members may be taken in the
future[.]”57 However, there were no facts pleaded to support a claim that the city
council was even considering removing Guy or any other council member.58 Thus,
any potential injury to Guy was entirely contingent on future actions that might or
might not be taken against him. Here, by contrast, future elections are inevitable,
and the Court discerns no value in forcing Reylek to wait until closer to an upcoming
election to renew her challenge. To the contrary, “[b]ringing lawsuits on the eve of
55
2021 WL 471438 (Del. Super. Feb. 9, 2021).
56
See id. at *1.
57
Id. at *4.
58
See id. (“Guy’s only claim of injury is that he ‘may be subjected to the same acts of exclusion.’
Guy further claims that this perceived, futuristic injury that has yet to transpire is because of an
‘unlawful removal of a black elected official as an act of systemic racism in support of white
supremacy.’ Guy offers no facts to support such an assertion.” (internal footnotes omitted)).
15
pending elections disrupts the electoral process.”59 Uncertainty about whether the
material facts will change within an election cycle is not always sufficient to defeat
an election-related challenge on ripeness grounds.60 Accordingly, the Court
concludes that insofar as an actual controversy otherwise exists, the matter is ripe
for judicial determination.
Ripeness, however, is not the only actual controversy prerequisite in question
on the facts alleged here.61 The Court concludes, sua sponte, that Reylek’s asserted
“legal right to vote in a verifiably secure way” requires additional scrutiny. Without
a doubt, Reylek has a constitutionally protected right to vote in “free and equal”
elections.62 Reylek cannot, however, plausibly assert a constitutional violation on
the facts alleged. Construed in context, Reylek’s actual asserted right is a statutory
59
Miller v. Brown, 462 F.3d 312, 320 (4th Cir. 2006); see also League of Women Voters of
Delaware, Inc. v. Dep’t of Elections, 250 A.3d 922, 933 (Del. Ch. 2020) (“[A]s a practical matter,
it is much preferable, to the extent possible, to resolve such disputes before, rather than after, the
election. The Plaintiffs’ claims are ripe for adjudication.”).
60
Miller, 462 F.3d at 320 (“[T]he only true uncertainty is whether another candidate will file for
office as contemplated by Section 24.2–526. Although an uncertainty, this procedural step cannot
occur until at least March 27, 2007, and as late as seventeen days later. The primary election likely
would be resolved before an action brought that late could reach final decision. The case is fit for
judicial review despite this uncertainty.” (internal footnote omitted)); cf. Babbitt v. United Farm
Workers Nat. Union, 442 U.S. 289, 300 n.12 (1979) (“There is value in adjudicating election
challenges notwithstanding the lapse of a particular election because ‘[t]he construction of the
statute, an understanding of its operation, and possible constitutional limits on its application, will
have the effect of simplifying future challenges, thus increasing the likelihood that timely filed
cases can be adjudicated before an election is held.’” (alteration in original) (quoting Storer v.
Brown, 415 U.S. 724, 737 n.8 (1974))).
61
Typically, the Court would consider any argument based on the first three prongs of the actual
controversy test waived by the Election Commissioner. However, the actual controversy
requirement is jurisdictional and therefore cannot be waived by agreement or concession of the
parties. See Guy, 2021 WL 471438, at *3 (“Where a court is asked to grant declaratory judgment,
it cannot do so unless there exists an actual controversy, even if the parties agree or consent to
conferring jurisdiction upon the Court.”); In re Peierls Family Inter Vivos Trusts, 59 A.3d 471,
477 (Del. Ch. 2012) (“Inquiry into whether an actual controversy exists is ‘jurisdictional in its
character, and presents an issue which the court itself [is] bound to raise.’” (alteration in original)
(quoting Stabler v. Ramsay, 88 A.2d 546, 549 (Del. 1952))), aff’d, 77 A.3d 249 (Del. 2013).
62
Del. Const. art. I, § 3.
16
one, derived from 15 Del. C. §§ 5000A and 5001A(c), to cast her vote on a voting
system that has been properly certified by the EAC or a designated federal authority.
However, a statute governing the conduct of an administrative agency or official
does not necessarily create either a private right or a private remedy,63 and the
statutes on which Reylek relies do not expressly provide for enforcement by
individual voters. Moreover, the Declaratory Judgment Act does not itself supply a
cause of action where a justiciable controversy does not otherwise exist.64
This Court’s discussion in Korn v. Wagner is instructive.65 In Korn, the
plaintiff sought declaratory relief where the State of Delaware auditor had allegedly
failed to comply with a statutory mandate providing that “the auditor ‘shall conduct
postaudits of local school district tax funds budget and expenditures annually.’”66
The Court framed the actual controversy issue as a question of “whether [the
auditor’s] alleged inaction implicates any of Korn’s rights.”67 Relying on the Court
of Chancery’s discussion in O’Neill v. Town of Middletown, the Court concluded
63
See Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)
(“Under traditional standards, a law that creates a duty to the general public does not give rise to
privately enforceable rights.”); Yeilding v. Council of Ass’n of Unit Owners of Pelican Cove
Condo., 2022 WL 1161347, at *9 (Del. Ch. Apr. 20, 2022) (holding that “[e]ven assuming the
predicate violations” the plaintiffs had failed “to show that they have a private right of action based
on statutory or regulatory violations”); O’Neill v. Town of Middletown, 2006 WL 205071, at *22
(Del. Ch. Jan. 18, 2006) (“Chapter 91 fails to evince any intent to confer a private right on these
Plaintiffs or any private plaintiffs.”); Couch v. Delmarva Power & Light Co., 593 A.2d 554, 557
(Del. Ch. 1991) (“I conclude that ALPA creates no rights enforceable by members of the public,
and thus, it presents no basis upon which the relief sought could be granted.”).
64
See Humanigen, Inc. v. Savant Neglected Diseases, LLC, 238 A.3d 194, 202 (Del. Super. 2020)
(“A declaratory judgment is better understood as a remedy than a sort of substantive claim or
action.”); cf. Doe v. Coupe, 2015 WL 4239484, at *4 n.20 (Del. Ch. July 14, 2015) (“Even though
10 Del. C. § 6501 enables courts to render declaratory judgments, it does not obviate the need for
a real case or controversy. For example, Plaintiffs conceivably might have to base a claim for
declaratory relief in the Superior Court on a damages claim against Defendant.” (internal citation
omitted)).
65
2012 WL 5355662 (Del. Super. Sept. 28, 2012).
66
Id. at *3 (quoting 29 Del. C. § 2906(f)).
67
Id.
17
that an implied private right of action analysis was appropriate to determine
“whether the statutory text evinced a legislative intent to give the plaintiffs a private
right and a private remedy against the government.”68 Finding that the statute was
“far too broad and vague to permit a finding of an implied [private] right of action,”69
the Court held that “the action here is without a controversy and cannot stand under
the Declaratory Judgment Act.”70
Here, as in Korn, an actual controversy exists only if the provisions on which
Reylek relies, 15 Del. C. §§ 5000A and 5001A(c), create an implied private right of
action. This is a question of first impression not yet addressed by the parties.
Delaware courts generally apply a three-factor test to determine whether an implied
private right of action exists under a statute, analyzing “(1) whether the plaintiff is a
member of a class for whose especial benefit the statute was enacted; (2) whether
there is any indication of legislative intent to grant or deny a private right of action;
and (3) whether recognition of an implied private right of action would advance the
statute’s purpose.”71 The second factor, however, is usually dispositive under
contemporary analysis.72 Thus, since the statutory provisions at issue do not create
an express right of action to enforce their requirements, the Court must “interpret the
statute [the legislature] has passed to determine whether it displays an intent to create
not just a private right but also a private remedy.”73 Since this issue has not been
68
Id.
69
Id. (quoting O’Neill, 2006 WL 205071, at *21).
70
Id.
71
Chance v. Kraft Heinz Foods Co., 2018 WL 6655670, *4 (Del. Super. Dec. 17, 2018) (quoting
Rays Plumbing & Heating Serv., Inc. v. Stover Homes, L.L.C., 2011 WL 3329384, at *2 (Del.
Super. July 26, 2011)).
72
See O’Neill, 2006 WL 205071, at *19 (“[I]n determining the existence of implied rights of
action, the focus is now to be placed on the second prong of the three-prong test.”); Rays Plumbing,
2011 WL 3329384, at *3 (“The second factor of the Cort test, which is determinative under the
newer Sandoval analysis, is more difficult.”).
73
O’Neill, 2006 WL 205071, at *21 (alternation in original) (quoting Alexander v. Sandoval, 532
U.S. 275, 286 (2001)).
18
addressed by the parties, the Court requires additional supplemental briefing before
ruling on the Election Commissioner’s motion to dismiss with respect to Count 1 of
the Amended Petition.74
CONCLUSION
For the foregoing reasons, the Election Commissioner’s Motion to Dismiss
the Amended Petition for Writ of Mandamus is GRANTED IN PART AND
DEFERRED IN PART. The prayers for relief requesting mandamus relief, Counts
2 through 5 of the Amended Petition, are DISMISSED. Decision on Count 1, the
declaratory judgment count, is DEFERRED pending supplemental briefing on
whether 15 Del. C. §§ 5000A and 5001A(c) create an implied private right of action.
Reylek and counsel for the Election Commissioner are directed to file
supplemental briefing no later than August 8, 2023, and shall have the
opportunity to respond to one another’s submissions (if they so choose) no later
than August 17, 2023. These submissions shall conform to the length requirements
for motions and responses found in Superior Court Civil Rule 78(b) and shall include
citations to relevant authority.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress & U.S.P.S.
oc: Prothonotary
74
See Rays Plumbing & Heating Serv., Inc. v. Stover Homes, L.L.C., 2010 WL 8250838, at *4
(Del. Super. Dec. 15, 2010) (reserving decision on a motion to dismiss “until the parties have had
an opportunity to fully brief and argue the specific issue of whether there is an implied private
right of action”).
19